PLD 1979 Supreme Court 741 (PLP)

MUHAMMAD AKRAM, J : This petition seeks a review of the judgment of this Court dated the 6th of February, 1979, whereby Criminal Appeal No. 11 of 1978 filed by the petitioner Zulfiqar Ali Bhutto was dismissed, and convictions and sentences recorded against him by the Lahore High Court under sections 120‑B/115, 307/109, 3021301, read with sections 109 and 111 of the Pakistan Penal Code were upheld and confirmed, with the modification that section 301 of the Pakistan Penal Code will not apply. This appeal was heard and decided by a Bench of seven Judges, alongwith two other connected appeals bearing Nos. 12 and 13 of 1978, filed by the remaining four accused in the case. While Appeals Nos. 11 and 12 filed by the petitioner and his co‑accused Mian Muhammad Abbas were dismissed according to the opinion of the majority, the third appeal, filed by the confessing accused, namely, Ghulam Mustafa, Rana Iftikhar Ahmad and Arshad Iqbal, was dismissed unanimously by all the seven Judges of the Bench.

2. Although the facts of the case, and the voluminous evidence relating thereto, appear fully in the‑lengthy judgments delivered by the Court, it is necessary to briefly state the relevant facts for a proper appreciation of the grounds urged for review of the majority judgment.

3. The incident giving rise to these appeals took place at about 0‑30 a.m. on the night between the 10th and 11th of November, 1974, near Shadman‑Shah Jamal Roundabout in Lahore, when Ahmad Raza Kasuri (P. W. 1) was returning to his house in Model Town after attending the wedding of one Bashir Hussain Shah in Shadman Colony. He was driving his car bearing No. LEJ 9495, and his father Nawab Muhammad Ahmad Khan deceased was sitting next to him, whereas his mother and her sister were occupying the rear seat of the car. As he negotiated the Roundabout in question, less than a 100 yards from the wedding place, his car was fired upon with automatic weapons. The head‑lights of the car as well as other parts of its body were hit, and so was his father. The lights of the car went off, but Ahmad Raza Kasuri managed to drive on so as to take his injured father to the United Christian Hospital, where the deceased succumbed to his injuries at 2‑55 a.m.

4. In The First Information Report made by Ahmad Raza Kasuri at 3‑20 a.m. at the Hospital, he referred to an earlier murderous attack made on him on the 17th of January, 1972, at Kasur and another attack launched on him on the 24th of August, 1974, at Islamabad, in which automatic weapons were used. After giving the details of the manner in which his car was fired upon near the Roundabout, Ahmad Raza Kasuri asserted that the firing on his car had been carried out for political reasons since he was a member of the Opposition in the National Assembly of Pakistan, and was holding the office of Central Information Secretary of Tebrik‑e‑Istaqlal Pakistan, which used to criticise the Government in strong terms. He added that in June, 1974, Zulfiqar Ali Bhutto had addressed him in a meeting of the National Assembly saying that he was fed up with the complainant, and it was not possible for him to tolerate the complainant any more. Ahmad Raza Kasuri stated that these words formed part of the record of the National Assembly, and had also been published in the newspapers.

5. The autopsy of the dead body of deceased Nawab Muhammad Ahmad Khan revealed that the deceased had received bullet injuries on the top right side and back of the loft side of the head, resulting in fracture of the parietal bone as 'Well as of the base of the skull. Two thin metallic pieces from the margins of the wounds and one bullet from the right cerebral hemisphere in the middle were recovered, and handed over to the Investigating Officer Abdul Hayee Niazi (P. W. 34) after being sealed in a tube.

6. On inspecting the spot, S. H. O. Abdul Hayee Niazi, collected 24 empty cartridges from the ground, and also a lead piece of a bullet from one of the adjacent bungalows. He prepared a site plan (Exh. P. W. 34/2), showing, inter alts, four places, two in the Roundabout, and two on the metalled portion of the road, from where he had collected the empty cartridges. Subsequently he had another plan of the spot prepared by the draftsman Inam Ali Shah, which was brought on the record as Exh, P. W. 34/5‑D, and shows a somewhat different picture from that appearing in the first site plan as regards distances between the various points.

7. The Investigating Officer first showed the 24 crime empties to Nadir Hussain Abidi (P. W. 36) then Director of the Forensic Science Laboratory, Lahore, to as to ascertain the type of weapon from which they had been fired. Later, on the 23rd of November, 1974, he despatched them to the Inspectorate of Armaments, General Headquarters, Rawalpindi, for an expert opinion as to their calibre etc., and was informed, vide Exh. P. W. 32/1, that the crime empties were of 7.62 mm. calibre, of Chinese Make and could be fired from rifle, L. M. G. and S. M. G.

8. In the initial stages the investigation was supervised by Deputy Superintendent of Police, Abdul Abad, who is said to have died in 1975. As apparently the investigation was not making much headway, the case was then entrusted to Malik Muhammad Waris (P. W. 15) of the Special Branch. The Punjab Government also appointed a special Tribunal, comprising Mr. Justice Shafi‑ur‑Rehman of the Lahore High Court, to inquire into the incident. The Tribunal submitted its report to the Provincial Government on the 26th of February, 1975, giving certain guidelines for the further investigation of the case. It appears that the report was not published. In October, 1975, the case was filed as untraced by the D. S. P. Muhammad Waris after obtaining instructions from the Provincial Government through the Inspector‑General of Police.

9. However, the case was re‑opened after the promulgation of Martial Law on the 5th of July, 1977. The Central Government bad directed the Federal Investigation Agency to enquire into the working of the Federal Security Force and its officers, particularly into allegations relating to various political murders and kidnappings, as well as dispersing of political meetings and processions by the Federal Security Force. While investigating one such incident relating to the alleged bomb‑blast in the premises of the Lahore Railway Station on the visit of Air Marshal (Rte.) Asghar Khan in March, 1975, Abdul Khaliq (P. W. 41), Deputy Director of the Federal Investigation Agency, came to suspect that the Federal Security Force might be involved in the murder of Nawab Muhammad Ahmad Khan. Appellants Arshad Iqbal and Rana Iftikhar Ahmad were interrogated in this behalf on the 24th and 25th of July, 1977, and arrested in this case. They confessed their participation in the incident and their statements were recorded on the 26th of July, 1977, under section 164 of the Criminal Procedure Code by Magistrate Zulfiqar Ali Toor (P. W. 10). Appellants Ghulam Mustafa and Mian Muhammad Abbas as well as approvers Masood Mahmood and Ghulam Hussain were also later arrested. All of them made confessional statements under section 164 of the Criminal Procedure Code, eventually leading to the arrest of the former Prime Minister.

10. After reviewing the entire evidence at length, the High Court held that the prosecution had succeeded in proving that Zulfiqar Ali Bhutto had strained relations with Ahmad Raza Kasuri, thus constituting a motive to get him eliminated ; that this appellant bad entered into a conspiracy with Masood Mahmood (P. W. 2), in which plan the other accused also joined at different levels to execute the mission along with Ghulam Hussain approver ; that the attack on Ahmad Raza Kasuri in Islamabad was a part of the same operation ; that the attack launched on Kasuri's car in Lahore, during the course of which his father was killed, was also in furtherance of the same conspiracy ; and that the initial investigation in the case was not honest, and efforts had been made at various levels to divert its course for 'the purpose of screening the real offenders. The High Court expressed the view that sufficient evidence, circumstantial and documentary, had been brought on the record to provide corroboration necessary for the purpose of placing reliance on the statements of the two approvers Masood Mahmood and Ghulam Hussain. It also took note of the fact that the appellants Arshad Iqbal, Ghulam Mustafa and Rana Iftikhar Ahmad had stuck to their confessions throughout the course of the trial. Finally, the High Court held that there were no extenuating circumstances in favour of the appellants, as Zulfiqar Ali Bhutto was the Prime Minister of the country and it was his duty to protect the life and liberty of the citizens of Pakistan, and not to use the Federal Security Force for eliminating his political opponents that the other appellants were under no obligation to obey the unlawful commands of their superiors, and such a plea could not afford a valid defence in law.

11. During the course of elaborate and exhaustive arguments, spread over a period of nearly two months, Mr. Yahya Bakhtiar, the learned counsel for appellant Zulfiqar Ali Bhutto assailed the judgment of the High Court on three main grounds, namely :‑ (a) It is a false, fabricated and politically motivated case, being the result of an international conspiracy aimed at eliminating the appellant both politically and physically. (b) That the trial stands vitiated for the reason that the presiding Judge of the Bench, namely, Mr. Justice Mushtaq Hussain was biased against the appellant, and the trial was not conducted fairly inasmuch as evidence was not recorded faithfully in accordance with the depositions of the witnesses, objections raised by the defence counsel as to the admissibility of evidence were frequently not recorded, and were often illegally overruled ; and that as a result of the cumulative effect of such prejudicial orders the appellant was compelled to boycott the trial from the 10th of January, 1978, onwards as a measure of protest ; and (c) That on merits, the prosecution had failed to prove its case beyond reasonable doubt; that inadmissible evidence had been allowed to be brought on the record and taken into consideration against the appellant in violation of the relevant provisions of law; and that admissible and relevant evidence had been illegally shut out to the prejudice of the appellant ; that the prosecution witnesses, particularly the two approvers Masood Mahmood and Ghulam Hussain were not worthy of credit ; and that the necessary corroboration, as required by law, was not available on the record.

12. After Mr. Yahya Bakhtiar concluded his arguments, the petitioner Zulfiqar Ali Bhutto was also allowed to address the Court personally for four days on the various aspects of the case.

13. After giving a detailed consideration to the submissions made by Mr. Yahya Bakhtiar, as well as by the petitioner in person, the majority judgment has expressed the view that;

"By and large the trial was held substantially in accordance with the provisions of the Cr. P. C. and that any omissions, errors or irregularities, or even illegalities, that have occurred, were of such a nature as did not vitiate the trial, and were certainly curable under the provisions of section 537 of the Criminal Procedure Code as it now stands in its amended form since 1972." This judgment has further found that the allegations of bias against the siding Judge of the Bench, and criticism of the actions and orders made the Bench during the course of the trial were not justified ; and that in spite of the events, and the background, alluded to by the appellant and his counsel, the High Court Bench of five Judges had done its best to conduct the trial as fairly as possible in the circumstances then prevailing.

14. The judgment has also held that;

"The cumulative effect of all this oral and documentary evidence is to establish conclusively the existence of motive on the part of appellant Zulfiqar Ali Bhutto ; and the existence of a conspiracy between him, approver Masood Mahmood, approver Ghulam Hussain and appellants Mian Muhammad Abbas, Ghulam Mustafa, Arshad lqba1, and Rana Iftikbar Abroad. It is significant that the task was entrusted to the Director‑General of the Federal Security Force who was made personally responsible for its execution. The various subordinate officers were inducted at various levels and at various stages for the execution of the conspiracy through the employment of highly sophisticated and automatic weapons of the Federal Security Force as well as its trained personnel."

15. The majority judgment further goes on to hold that;

"The death of Ahmad Raza Kasuri's father Nawab Muhammad Ahmad Khan deceased was a probable consequence of the aforesaid conspiracy and was brought about during the course of a murderous assault launched on Ahmad Raza Kasuri in pursuance of this conspiracy . It is true that the three appellants Zulfiqar Ali Bhutto, Mian Muhammad Abbas and Ghulam Mustafa were not specifically charged under section 111 of the Pakistan Penal Code, but in this regard the matter is fully covered by the provisions of section 237 of the Criminal Procedure Code read with section 236 thereof, for the reason that in the ultimate analysis it was a question of law as to whether the facts proved on the record fell within the purview of section 301 read with section 109, or section 302 read with sections 109 and 111 of the Pakistan Penal Code. All the essential facts were fully within the knowledge of the appellants, having been brought out during the course of evidence recorded in their presence or in the presence of their counsel."

16. On the question of sentence, the majority judgment states that as the petitioner had used the apparatus of Government, namely, the agency of the Federal Security Force, for a political vendetta, and later the power of the Prime Minister was used to stifle proper investigation and to pressurise Ahmad Raza Kasuri to rejoin the Pakistan People's Party, there were no extenuating circumstances in favour of the petitioner and the High Court was, accordingly, right in imposing the normal penalty sanctioned by law for the offences of murder as well as its abetment. The death sentences awarded to the other four appellants have also been maintained.

17. In the dissenting opinions recorded by three learned Judges of this Court, the evidence of the two approvers as well as of other witnesses, namely, Ahmad Raza Kasuri, Saeed Ahmad Khan and M. R. Welch has not been found to be satisfactory and acceptable, and it has also been held that there was no satisfactory corroboration in support of the testimony of the approvers. They have accordingly taken the view that the prosecution had failed to establish its case beyond reasonable doubt against the petitioner as well as co‑accused Mian Muhammad Abbas.

18. However, as to the appeals of the three accused who had pleaded guilty, the view taken is that they had not retracted their confessions and had stood by them even when they appeared before this Court. Dorab Patel, J., has observed that "additionally these confessions are corroborated by the evidence of Muhammad Amir, but it is not necessary to discuss this corroboratory evidence because a conviction can be based on a judicial confession if the Court is satisfied that it was genuine and voluntary, and I am satisfied that the confessions of the three appellants in the instant case were genuine and voluntary".

19. G. Safdar Shah, J., with whom Muhammad Haleem, J., has agreed, while upholding the convictions and sentences of the three confessing accused, has similarly observed that "right from the initial stages of the case they have not only admitted the commission of the crime, but the learned counsel appearing for them supported the case of the prosecution throughout. From the evidence on record, which finds corroboration from their own confessional statements, I am satisfied beyond the shadow of any doubt that all three of them are guilty, and consequently their convictions and sentences recorded by the High Court are proper". 20 Mr. Yahya Bakhtiar, the learned counsel appearing for the petitioner, submits that there are several errors patent on the face of the record in the majority judgment, which have led to a miscarriage of justice by giving rise to erroneous inferences on questions of fact as well as to misapplication of law. He also contends that in several important matters benefit of the doubt has been extended to .the prosecution rather than the defence, in violation of the established principles governing the administration of criminal justice.

21. In elaboration of these contentions, the learned counsel has, in particular, urged the following grounds.

"(i) That in coming to the finding that ammunition belonging to the Federal Security Force of 7.62 mm. bore and bearing the marking 661/71 was used in the incident, the majority judgment has not given proper effect to its findings that the empties might have been substituted and that the recovery memo prepared at the spot was not genuine; nor to the fact that Lt.‑Col. Wazir Ahmad, the author of letter Exh. P. W. 39/2 was not examined at the trial to prove the marking of the ammunition supplied to the Federal Security Force, and that the evidence of Fazal Ali (P. W. 24) and the documents produced or proved by him were not free from suspicion and that, in any case, they did not mention the marking of the ammunition in question ; (ii) That section 510 of the Criminal Procedure Code as amended in 1975, has not been properly interpreted and applied, with the result that the reports Exh. P. W. 32/1 and Exh. P. W. 23/4 signed by Major Fayyaz Haider on behalf of the Chief Inspector of Armaments, as to the calibre and marking of the ammunition used in the incidents at Islamabad and Lahore have been admitted in evidence as properly proved documents, although they were inadmissible for the reason that Major Fayyaz Haider was not examined as a witness at the trial, nor was it shown that he was a fire‑arm expert appointed by the Government for the purpose of section 510 of the Criminal Procedure Code, and this deficiency could not be made up by the evidence of Col. Zawar Hussain, another officer of the same Inspectorate ; (iii) That the majority judgment has failed to give full effect to the non‑matching of the crime empties with the guns of the Third Battalion of the Federal Security Force, stationed at Walton at the relevant time, from which the weapons used in the incident were allegedly taken by the confessing accused Ghulam Mustafa and supplied to the appellants Arshad Iqbal and Rana Iftikhar Ahmad; that the prosecution had failed to prove substitution of the crime empties, and the majority judgment proceeds on the probability that there might have been substitution of the empties, thus giving the benefit of doubt to the prosecution rather than the defence; (iv) That there has been a misreading of the site plan Exh. P. W. 34/2 as prepared by the Investigating Officer Abdul Hayee Niazi (P. W. 34), and also a patent error in placing reliance on the site plan prepared by draftsman Inam Ali Shah, Exh. P. W. 34/5‑D which was not accepted as correct even by the prosecution, besides the obvious error in thinking that 1' was equal to 10 cms. whereas, in fact, it was equal to 2.54 cms, with the result that there has been a serious mistake in calculating the distances between the places where the crime empties were found at the spot, and also in concluding that they had been fired from weapons of Chinese origin; and that in this behalf the result of the demonstration of firing seen by the Court could not be used as substantive evidence in support of the prosecution case ; (v) That there is a patent contradiction in the view taken by the majority judgment as to the strict requirements of section 540‑A of the Criminal Procedure Code on the one hand, and the effect of its non‑compliance by the High Court, with the result that even though the High Court did not record any reasons for proceeding with the examination of as many as 15 prosecution witnesses in the absence of the petitioner, the majority judgment erroneously concludes that the trial was not vitiated on this account ; (vi) That the finding recorded in the majority judgment that the trial of the petitioner was not vitiated on account of the bias of the learned Chief Justice, who presided over the trial Bench, is not correct, as the Court has failed to attach due importance to the cumulative effect of the large number of instances of bias which were discussed at length during the course of the arguments in the appeal; (vii) That the finding recorded in the majority judgment regarding the inadmissibility of the Log Book maintained on the jeep driven by Muhammad Amir (P. W. 19) is based on a misreading of the evidence of the witness concerned who had made it clear that the M. T. O. was the proper person, and not the driver of the jeep, to make the relevant entries regarding the journeys performed by the vehicle ; (viii) That while scrutinising the evidence of approver Ghulam Hussain (P. W. 31) the Court has fallen in error, and misread the evidence on record, as regards a number of important contradictions and improvements pointed out by the defence, which had a vital bearing on the question of his reliability ; (ix) That important contradictions between the testimony of approver Ghulam Hussain at the trial, and the confessions of appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad, have not been duly considered in assessing the value to be attached to the approver's statement, and it has been erroneously held that the confessions lent support to the approver, although, in fact, they contradicted him ; (x) That the evidence of Amir Badshah Khan (P. W. 20) also contradicts approver Ghulam. Hussain and driver Muhammad Amir as to the time when the guns were supplied by him to Ghulam Mustafa for being passed on to approver Ghulam Hussain, inasmuch as this witness asserted that the guns were supplied towards the end of September 1974 and not in November 1974 as stated by the approver ; (xi) That similarly the evidence of Fazal Ali (P. W. 24) has been accepted without giving due consideration to the contradictions and improvements pointed out by the defence, which had a direct bearing on the question of the identity of the ammunition allegedly supplied by him to approver Ghulam Hussain ; (xii) That the majority judgment is in error in placing reliance on the testimony of Saeed Ahmad Khan as corroborating that of Masood Mahmood or Ahmad Raza Kasuri, as, in fact, be should have been found to be an accomplice for the reason that he had suppressed evidence from the Shafi‑ur‑Rehman Inquiry Tribunal and had consistently tried to screen the real offender, namely, Federal Security Force; and the Court has also ignored the fact that he had clearly stated that the petitioner had become his enemy, and Martial Law inquiries had also been started against him ; (xiii) That the majority judgment has erred in law in placing reliance on the secure reports, which were not proved by their authors, and using their contents against the petitioner in violation of the rule laid down in Islamic Republic of Pakistan v. Abdul Wali Khan P L D 1976 S C 57 and approved in this case ; (xiv) That the Court has erred in holding that paragraph 15 of Mr. Justice Shafi‑ur‑Rehman's report could not be regarded as secondary evidence of the statement apparently made by Ahmad Raza Kasuri before the Tribunal as regards the motives behind the attack launched on his car, which resulted in the death of his father, as the authenticity of the observations contained in this particular paragraph of a judicial document could not be doubted ; (xv) That the Court has gone wrong in thinking that nothing was done in 1974‑75 to conduct the investigation according to the guidelines given by the Inquiry Tribunal, as it was clearly stated in the letter of the Deputy Inspector‑General to the Inspector‑General that the investigation had been completed in accordance with the directions given by the Inquiry Tribunal, and yet the culprits could not be traced ; (xvi) That the oral. evidence of M. R. Welch (P. W. 4), as well as the documents proved by him, have been misread in coming to the conclusion that they connect the petitioner with the conspiracy; that in this connection unproved, secure reports have also been taken into account, which was not permissible under the law; and that, in any case, Welch was not a reliable witness as shown by his misstatement regarding his religion, and his vulnerability to extraneous pressure, besides the fact that he was no better than an accomplice as he had consciously suppressed information regarding Masood Mahmood's intention to have Ahmad Raza Kasuri eliminated during the latter's visit to Quetta ; (xvii) That the majority judgment has fallen into serious error in placing reliance on the testimony of approver Masood Mahmood (P. W. 2), and that conclusions have been reached in this matter as a result of misreading of the evidence of his driver Manzoor Hussain (P. W. 21), by placing reliance on fabricated documents like tour details contained in Exh. P. W. 5/1 and also by ignoring his evidence regarding his hunch about the Islamabad incident and the lack of corroboration in respect of the circumstances of his appointment as Director‑General of the Federal Security Force ere., besides the erroneous assumption that being an official of high status he was expected to speak the truth ; (xviii) That in reaching its conclusions as to the presence of motive on the part of the petitioner to do away with Ahmad Raza Kasuri, the majority judgment has misread the First Information Report as indicating that the motive lay only with the petitioner to the exclusion of other political enemies of the complainant; that it has also erroneously presumed that no other motive was proved on the record and other motives stood excluded; that the effect of Ahmad Raza Kasuri rejoining the Pakistan People's Party after the murder of his father, and his expressing admiration for the petitioner has also been ignored; and it has been overlooked that as Ahmad Raza Kasuri was criticising and attacking the formation and performance of the Federal Security Force, therefore, Masood Mahmood and the petitioner's co‑accused Mian Muhammad Abbas might have had a motive of their own to finish him ; (xix) That the view taken by the majority judgment as to the use of the evidence of an approver for the purpose of satisfying the test of reasonable grounds for believing that there has been a conspiracy involving specified persons, as mentioned in section 10 of the Evidence Act, is erroneous and contrary to the weight of judicial authority; that paragraph 118 of the judgment also suffers from at error inas much as it seems to permit the use of inadmissible, and unreliable evidence for the purpose of forming the belief mentioned in section 10 aforesaid; and that, in any case, the evidence mentioned in support of finding reasonable grounds is such as does not connect the petitioner at all with any conspiracy ; (xx) That the majority judgment also suffers from an error patent on the face of the record as it has used, in support of the petitioner's conviction, facts elicited by the learned counsel for the confessing accused in cross‑examination illegally permitted to him by the High Court after the counsel for the petitioner and for the other contesting accused Mian Muhammad Abbas had concluded their cross‑examina tion, with the consequence that certain incriminating facts, damaging to the petitioner, were brought on the record without the petitioner having an opportunity to rebut the same ; (xxi) That the majority judgment suffers from a patent contradiction inas much as it has rejected the petitioner's application‑ for summoning additional evidence on the ground that he was not in law permitted to boycott the proceedings of the trial in the High Court, and at the same time it has given legal, recognition to the fact of boycott by holding that no prejudice had been caused to him by the failure of the High Court to put certain pieces of evidence to him under section 342 of the Criminal Procedure Code as he had already boycotted the proceedings and refused to answer a large number of questions put to him by the High Court under this section of the Code ; (xxii) That while examining the question of the subsequent conduct of the petitioner, and the evidence of Saeed Ahmad Khan having a bearing thereon, the majority judgment has omitted to examine the effect of the note made by the petitioner on the letter of the Punjab Chief Minister, with which the Report of the Shafi‑ur‑Rehman Inquiry Tribunal was enclosed, to the effect "what was the point in discussing with you. Please discuss"; that, in fact, these remarks of the petitioner clearly showed that Saeed Ahmad Khan had been meddling with the investigation of the case without the petitioner's authority ; (xxiii) That the majority judgment has erred in coming to the conclusion that there was voluntary agreement on the part of Masood Mahmood to join the alleged conspiracy, as due weight has not been given to the fact that he had been given orders by the petitioner and that he also felt threatened in the sense that the petitioner is alleged to have asked Masood Mahmood whether he wanted to be chased by the Establishment Secretary, Mr. Vaqar Ahmad; and that Masood Mahmood's subsequent conduct in regard to the Islamabad incident and his alleged directions to M. R. Welch at Quetta have also .been misconstrued as indicating voluntary acquiescence on his part; (xxiv) That the majority judgment has not given effect to the sub-o missions made on behalf of the petitioner as to the erroneous and illegal view taken by the trial Bench in the matter of contradictions and omissions occurring in the evidence of the prosecution witnesses when they took up the position that they did not remember whether they had stated certain things in their previous statements or not, with the result that the prejudice caused to the petitioner by the refusal of the High Court to allow cross‑examination in respect of these matters has not been considered by this Court; (xiiv) That the conclusions reached in the majority judgment as to the effect of non‑examination of material witnesses by the prosecution need to be reviewed, as the evidence of the recovery witnesses. Irfan Malhi, Director of the Federal Security Force, Muhammad Yousuf, Head Constable, and Mr. Plunif Ramay, former Chief Minister of Punjab, was material to the unfolding of the prosecution case, and the Court was under an obligation under the second part of section 540 of the Criminal Procedure Code to summon them as Court wit nesses; (xxvi) That the majority judgment has also‑ erred in refusing to summon, in this .Court, defence witnesses like Rao Abdul Rashid, former Inspector‑General of Police of the Punjab Province and others, as the petitioner did not have adequate opportunity of doing so in the trial Court; (xxvii) That the majority judgment is in error in holding that section 111 of the Pakistan Penal Code was applicable to the case of the petitioner, as there was no evidence on the record to show that the death of Nawab Muhammad Ahmad Khan deceased was a probable conse quence of the alleged conspiracy; that a conviction under this section could not be recorded without there being a separate charge, as the case was not one covered by section 237 of the Cr. P. C. read with section 236 thereof; and that, in any case, there is also an error in the application of section 109 of the Pakistan Penal Code in addition to section 111 thereof, as both the sections are mutually exclusive; (xxviii) That having reaffirmed the rule laid down in the case of Faiz Ahmad v. The State P L D 1960 S C 8 in regard to the effect of the non‑supply to the defence of statements of prosecution witnesses recorded under section 161 of the Criminal Procedure Code during the course of investigation, the majority judgment suffers from a patent error in not applying the rule to the facts of this case, and erroneously deciding neither to exclude the evidence of the prosecu tion witnesses concerned, nor to order a re‑trial of the petitioner on that account; (xxix) That, in any case, even if the conviction of the petitioner is maintained in spite of the errors and defects apparent in the majority judgment, it is a fit case where lesser punishment should be awarded for the offence falling under section 302 of the Pakistan Penal Code read with sections 109 and 111 thereof, for the reasons that the petitioner is guilty only of abetment and was not present at the spot at the time of the murder; that the conspiracy was to kill Ahmad Raza Kasuri and not his father who was hit by accident; that the conviction of the petitioner is based on the evidence of approvers; that there has arisen a difference of opinion between the learned Judges of this Court as to the petitioner's guilt; that with the introduction of the Islamic laws in the country with effect from the 12th of R. Awwal, 1399 H. (i.e. the 10th of February, 1979), it would be anomalous to impose death penalty for an unintentional murder, especially when the Shariat Laws do not recognise an approver, and the witnesses have to fulfil strict, qualifications as to integrity and character before their testimony can be acted upon; and that the fact that the petitioner was compelled to boycott the proceedings in the trial has also a bearing on the question of sentence.

22. Before embarking upon an examination of the submissions made by Mr. Yahya Bakhtiar in support of this petition, it would be useful to state clearly as to what is the scope and nature of review proceedings in a criminal case.

23. The power of review has been conferred upon the Supreme Court by Article 188 of the Constitution, which reads as under: "The Supreme Court shall have power, subject to the provisions of any Act of Parliament and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it."

24. So far no Act of Parliament has been enacted to regulate this power, but Order XXVI of the Supreme Court Rules, 1956, which have continued to operate under the successive Constitutions of 1962, 1972 and 1973. is directly relevant in this behalf. Rule 1 of this Order lays down that: "Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding on the ground of an error apparent on the face of the record." 25, Rule 6 of the same Order prescribes that, "as far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed.

26. At the commencement of the hearing of this petition on the 24th of February, 1979, it was submitted on behalf of the petitioner (in Cr. Misc. Application bearing No. 16 of 1979) that as originally it had been ordered that the petitioner's appeal shall be heard by the full Court consisting of nine Judge, including Mr. Justice Qaisar Khan and Mr. Justice Waheeduddin Ahmad, these two learned Judges should be recalled to sit on the review Bench. Mr. Justice Qaisar Khan had retired from the Supreme Court on the 31st of July, 1978, on attaining the age of superannuation prescribed by the Constitution, and Mr. Justice Waheeduddin Ahmad was incapacitated by illness to continue on the Appeal Bench from the 22nd of November, 1978 onwards, with the result that the petitioners appeal, as well as the two connected appeals filed by the co‑accused, were ultimately decided by the remaining seven Judges of the Bench on the 6th of February, 1979. The petitioner's application for recalling these two learned Judges was dismissed by us on the same date on the ground that the position under the Supreme Court Rules was clear and unambiguous, and in terms of rule of Order XXVI, the review petition had to be heard by the seven Judge of this Court, who had delivered the judgment under review, and who were all available on the Bench for the disposal of the review petition.

27. At a subsequent stage a question arose as to the position of the three learned Judges of this Court who had recorded dissenting opinions in regard to the disposal of the petitioner's appeal. Again, relying upon the aforesaid rule 6, we took the view that as they were part of the Bench 4 that delivered the judgment sought to be reviewed, their presence on the Bench was necessary, as they were continuing as Judges of the Supreme Court and were available for the disposal of the review petition.

28. It will be seen that according to rule 1 of Order XXVI of then Supreme Court Rules the power of review is to be exercised in a criminal proceeding on the ground of an error apparent on the face of the record, and in a civil proceeding on grounds similar to those mentioned in e Order XLVII, rule 1 of the Civil Procedure Code. Now, as rule 1 of Order XLVII of the Code also speaks of a mistake or error apparent on face of the record, this ground for review is common to both the civil and criminal proceedings in this Court. Accordingly, it would appear that the two questions which need examination in this behalf are: (a) What is the meaning and content of the phrase "a mistake or error apparent on the face of the record" ; and (b) what is the scope and nature of the proceedings intended for the discovery and correction of such an error. 29: The learned counsel on both sides have taken pains to bring to our notice a considerable number of precedent cases, which have given us valuable assistance on both these points. Mention in this behalf : may be made of Chhajju Ram v. Neki and others (AIR 1922 PC 112), Tinnevelly Mills Co. Ltd. v. T. A. K. Mohideen Pichai Taraganar and others (A I R 1929 Mad. 209), Girdharlal Mansukhbhai Gandhi v. Kapadvanj Municipality (A I R 1930 Bom. 317), Ballrishan and another v. Mt. Bundia and others (A I R 1933 All. 274), Thakur Kishan Chand Singh v. Munshi Makund Sarup (A I R 1938 All. 308), Ranhir Prasad v. Sheobaran Singh (A I R 1939 All. 619),.. Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and others and Subhanand Chowdhary and another v. Apurba Krishna Mitra and another (AIR 1941. F C 1), Mt. Majid‑un‑Nisa v. Shaikh Anwarullah (A I R 1942 Oudh 210), Madansingh Ramsingh Malguzar v. Deputy Commissioner. Bilaspur and others (A I R 1944 Nag. 371), Moran Mar Basselios Catholicos and another v. Most Rev. Mar .Poulose Athanaslus and others (A I R 1954 S C 526), Burma Shell Oil Storage Distributing Co. of India Ltd. v. Labour Appellate Tribunal (A I R 1955 Cal. 92), Mirza Akbar All v. Mirza Iftikhar Ali and others (P L D 1956 F C 50), Muhammad Tufail v. Abdul Ghafoor and others (A I R 1959 Bom. 466), S. P. Awate, v. C. P. Fernandes and another (A I R 1959 Madh. Pra. 75), ‑ Kashiram v. Bhagwandas Lallu Kurmi and another (P L D 1961 Dacca 155), Anwar Hossain Talukdar and another v. Province of East Pakistan and others (P L, D 1961 Dacca 490 ‑), Province of East Pakistan v. Mohiluddin Molla and ‑others (P L D 1962 S C 335 ), Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and Lt. 'Col. Abdul Ghafoor Khan and others v. The Controller of Estate Duty, Government of Pakistan, Karachi etc. (1969 S‑C M R 13), Abdul Ghafoor v. The State (1970 S C M R 29), Chiragh Din and another v. Chairman Thai Development Authority (1970 S C M R 34), Abdul Majid v. C. S. ' C. and others (P L D 1962 S C 335 ), Ala Mohammad and another v. The State (1969 S‑C M R 13), Shah Mohammad v. The State (1970 S C M R 29), Haji Nawab Din v. Qazi Abu Sared (1970 S C M R 34), Mohammad Mushtaq v. The State (1973 S C M R 219), Collector of Customs etc. v. Mohammad Yousuf (1974 S C M R 7), Muhammad Naseer v. Haki n Dost Muhammad etc. (1975 S C M R 87'); Ch. Manzoor Elahi v. Federation of Pakistan etc. and Province of Baluchistan etc. v. Malik Ghulam Mani and Government of Pakistan v. Hafiz Umar Gul etc. (P ,L'D 1975 5 C 66), Mohammad Zafarullah Khan v. Mohammad Khan etc. (P L D 1975 S C 300), Syed Mohammad Zaki etc. v. Maqsood All Khan etc. (P L D 1976 S C 309), Mst. Inayat kibi etc. v. Umar Din etc. (1978 S C M R 163), Zamir Ahmad Khan v. Government of Pakistan (1978 S C M R 327), Rizwan Co‑operative Society Ltd. v. Custodian of Evacuee Property etc. (1978 S C M R 449) and Ghulam Sarwar etc. v. The State (1979 S C M R 43).

30. A perusal of the judgments cited at the Bar shows that there is a considerable consensus among judicial authorities as to the meaning of the phrase "an error apparent on the face of the record", and also as to the scope and nature of the review proceedings. Accordingly, it is not necessary to dilate at any length on the facts and observations appearing in these cases, and it would suffice, for our purposes, if reference is made to some of the leading judgments delivered in this behalf.

31. In the case Tinnevelly Mills Co. Ltd. v. T. A. K. Mohideen Pichal Taraganar and others, it was observed that an error of law to be apparent on the face of the record must relate to some proposition of law which is well settled and beyond controversy so far as the Court which delivered the judgment is concerned, and on which the judgment rests, and not merely to a question of law which is debatable and may be shown to be erroneous. In Balkrishan and another v. Mt. Bundia and others it was held that "an error in law does not come under the words error apparent on the face of the record". Besides a point of law which can only be established after arguments and reference to authorities is certainly not a point which is apparent on the face of the record; nor is it a point so simple as to carry conviction when it is stated. Again in Ranbir Prasad v. Sheobran Singh, it was observed that "the fact that a different view on certain question of law is possible is hardly any ground for review. For, an application for review of judgment under Order XLVII, rule I does not lie on the ground of an error of law and in any event the error must be so patent that it could be said to be apparent on the face of the record". On the same subject the observations appearing in S. P. Aware v. C. P. Fernandes, are more elaborate to the effect that: "The error contemplated is an error so manifest, so clear, that no Court would permit such an error to remain on the record. The error is not an error which could be demonstrated by a process of ratiocination, nor would it be correct to say that when two views on a question of law are possible and the Court has taken one view, the fact that the other view is a more acceptable view would render the first view an error apparent on the fact of the record."

32. The meaning of the term error apparent on the face of the record was examined at some length by a Division Bench of the Dacca High Court in the case of Anwar Husain Talukdar v. Province of East Pakistan, in ` relation to the exercise of writ jurisdiction as conferred by Article 170 of the 1956 Constitution. Although the case was not falling directly under review jurisdiction, yet the observations made by the learned Judges are highly instructive and relevant in the present context. In the judgment delivered by Hamoodur Rehman, J. (who later became the Chief Justice of Pakistan) it was held that "The error of law contemplated is an error so patent, so manifest, that the superior Court will not permit the subordinate Court to come to a decision in the face of a clear ignorance or disregard of a provision of law. If a section of a statute is clearly misconstrued, or if a provision of the law is overlooked, or not applied, and that appears from the judgment of the lower Court itself, then the superior Court may interfere by a writ of certiorari. It is not, however, always easy to determine what are errors of law apparent on the face of the record. What is an error patent on the face of the record cannot be defined with any precision or even exhaustively, and there must always be an element of indefiniteness inherent in its very nature and each case will have to be determined on its own facts."

33. In the case of Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and another (P L D 1962 S C 335), the review petition had been specially admitted to make a thorough examina tion of the scope and extent of the power of review expressly conferred upon the Court under Article 161 of the 1956 Constitution. Cornelius C. J., expressed the view that "there must be a substantial and a material effect to be produced on the result of the case if, in the interest of "complete justice" the Supreme Court undertakes to exercise its extraordinary jurisdiction of review of its own considered judgment. If there be found material irregularity and yet there be no substantial injury consequent thereon, the exercise of the power of review to alter the judgment would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustices. Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the Constitution or with a law of Pakistan there it would be the duty of the Court unhesitatingly to mend the error. It is the duty of every Judge of the Court to preserve, protect and defend the Constitution and laws of Pakistan. But the violation of a written law must be clear to enable this Court to interfere with its previous judgment or, order in exercise of its review jurisdiction. In that connection Kaikaus, J. observed that the mere incorrectness of a conclusion reached can never be a ground for review. To permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against its own judgments. It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie. It is a remedy to be used only in exceptional circumstances. According to Hamoodur Rahman, J. a review is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of this Court, but the indulgence by way of review may no doubt be granted to prevent irremediable injustice being done by a Court of last resort as where by some inadvert ence an important statutory provision has escaped notice which, if it had been noticed, might materially have affected the judgment of the Court but in no case should a rehearing be allowed upon merits."

34. The views expressed by the Federal Court in the case of Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and others are also instructive. It was observed "the Federal Court will not sit as a Court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision . . . . . The Federal Court will exercise its power of review for the purpose of rectifying mistakes which have crept in by mis-prison in embody ing the judgments or have been introduced through inadvertence in the details of judgments. It can also supply manifest defects in order to enable the decrees to be enforced, or add explanatory matter, or reconcile inconsistencies. The indulgence by way of review is granted mainly owing to the natural desire to prevent irremediable injustice being done by a Court of last resort as where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard. But in no case, however, can a rehearing be allowed upon the merits or even on the ground that new matter has been discovered, which, if had been produced at the hearing of the appeal, might materially have affected the judgment of the Court."

35. The rule laid down in this case was applied by this Court in the case of Syed Muhammad Zaki v. Maqsood Ali Khan (PLD1976SC308), observing that "merely because a decision of this case is erroneous per se is not a ground to justify its review for that would seriously impair the finality attaching to the judgments of this Court, which sits at the apex of the judicial system. Nevertheless, it was observed in that case, if there be found a material irregularity in the decision, which is of the nature which "converts the process from being one in aid of justice to a process which brings about injustice", or if the decision is in conflict with the Constitu tion or a law of the land, then it would be the duty of the Court to mend the error".

36. In Ramaswami Fadayachi v. Shanmugha Fadayachi ((1959) 2 Mad, LJ201), it was held that where a judgment is based on two or more grounds, each of which is sufficient to sustain it independently of the others, it is not liable to be reviewed even though one of the said grounds is erroneous and the error may even be apparent on the face of the record. A similar view was taken by this Court in the case of Muhammad Zafrullah Khan v. Muhammad Khan and others and it was observed that if the wrong assumption of fact was not the sole ground for the dismissal of the appeal of the petitioner, and the same could be based on the reasoning contained in other portions of the judgment under review, then the review would not be maintainable, as it could not be made a pretext for re‑arguing the whole case. To similar effect are the observations of this Court in three cases recently decided, namely, Mst. Inayat Bibi etc. v. Umar Din etc., Zamir Ahmad Khan v. Government of Pakistan and Rizwan Co‑operative Society Ltd. v. Custodian of Evacuee Property etc. In the last‑mentioned case, the judgment was delivered by our learned brother Muhammad Haleem, J. and it was held that: "A contention which was not raised either in the High Court or at the hearing of appeal before Supreme Court, cannot be made a ground for review; that even if a provision of law has been erroneously construed, still it cannot be regarded as an error apparent on the face of the record so as to invite interference in review jurisdiction; and that review proceedings did not mean a re‑hearing of the appeal, and, therefore, it was not permissible to raise either a new ground or one which had not been argued in the manner in which it was raised in review."

37. There are a number of precedent cases directly dealing with the question of review in regard to the quantum of sentence in criminal matters. In Muhammad Hussain and another v. The State (Cr. Review Petition No. 6 of 1974) this Court refused to interfere with the sentence of death awarded to the petitioner in the judgment under review on the ground that the principle, on which reliance was placed, was fully present to the mind of the Court at the time of the judgment. In Siraj Din v. Nazar Hussain (Cr. Review Petition No. 8 of 1974) the Court refused to commute death sentence to imprisonment for life on the ground that it was a legal sentence, and, therefore, not liable to interference in review. Similarly in Muhammad Sarfraz v. The State (Cr. Review Petition No. 1 of 1974), it was observed that having already awarded the legal sentence of death, this Court cannot reopen this question in review petition and the matter could alone be considered by the Executive authorities in exercise of their Constitutional jurisdiction.

38. In Agha Khan v. The State (Criminal Review Petition No. 7 of 1966) review was sought on the plea that while dismissing the special leave petition, this Court did not consider whether the death penalty was the only appropriate punishment awarded to the petitioner in the case. It was submitted that the petitioner was a youth of 19 years of age and this was a factor which should have been considered in maintaining the death sentence awarded to him. But the Court refused to review its previous decision on this ground of age alone.

39. In Tarig Javid v. The State (Criminal Review Petition No. 4‑R of 1976) according to the concurrent findings of the two Courts, the petitioner was convicted under sections 323, 354 and 366 of the Pakistan Penal Code, and awarded various terms of imprison ment as well as fine on these counts, including a sentence of five years' rigorous imprisonment for the offence falling under section 366, P. P. C. His petition for special leave against his conviction and sentence was also dismissed. In review it was prayed that at least this sentence of five years Awarded to the petitioner was unduly harsh in the circumstances of the case and might be reduced. But repelling this contention the Court refused to interfere with the legal sentence awarded to him with the observations that :‑ "We regret we see no merit in this prayer an well, as the maximum sentence prescribed under section 366 is rigorous imprisonment for ten years. The sentence of five years rigorous imprisonment was, therefore, a legal sentence, and it has been adjudged to be appropriate not only by the trial Court but also by the appellate Court. This Court does not ordinarily interfere with a legal sentence, unless some compelling justification is made out. In the present case, we do not see any such justification."

40. In Kala Khan and others v. Misri Khan and others (Criminal Review Petition No. 2‑R of 1977) this Court observed that in awarding the capital sentence, the trial Court had held that there was no extenuating circumstance to mitigate the sentence. But the learned counsel for the petitioner was not able to show that this conclusion was amenable to challenge for any substantial reason. In any case, in the opinion of this Court, this objection was not taken in the appeal and therefore, it could not be urged in review.

41. In Feroze v. The State (1975 S C M R 232) the petitioner was convicted by the trial Court under section 302, P. P. C. for the murder of Nooran Shah deceased and sentenced to death. His appeal to the High Court against his conviction failed and his death sentence was confirmed on a reference. He then applied to this Court for special leave against the judgment of the High Court. In that case the murder of Nooran Shah for which the petitioner stood convicted, had a tragic background of murders of four persons committed on three different occasions since 1970 in each of which Nooran Shah deceased was allegedly concerned. In the petition for special leave before this Court, the learned counsel for the petitioner was unable to possibly question his conviction. He however, made an earnest plea that in view of the background which had led the petitioner to avenge the murders of his brother and ‑ father and the two prosecution witnesses in cases relating to their murders, the extreme penalty of death was not justifiable and that the ends of the justice would have been fully satisfied with the lesser sentence. In that connection the Court was however, of the opinion that the sentence of death imposed upon the petitioner was perfectly legal, and the mere fact that in the peculiar circumstances of the case, the lesser sentence would have been more appropriate, would not be a sufficient ground for the grant of special leave by this Court. In that connection the Court observed :‑ "We cannot possibly say that there is no substance in the above plea. However, the fact remains that the sentence of death imposed upon the petitioner is perfectly legal and the mere fact that in the peculiar circumstances of the case, the lesser sentence would have been more appropriate would not be a sufficient ground for grant of leave by this Court, for, as pointed out in a number of cases, this Court will normally not interfere to reduce the sentence which otherwise is legal. Adhering to that view, we are constrained to refuse leave, in a matter which was entirely discretionary with the High Court and trial Court. This aspect of the case, now, more appropriately falls to be dealt with by the Executive in the exercise of its prerogative of mercy." In this connection we cannot help observing that these very considerations are mruatis mutandis applicable with even greater force to the proceedings before this Court for a review of its own order.

42. In this connection, however, before concluding we must refer to the unreported case of Irshad v. The State (Criminal Review Petition No. 9‑R of 1976) brought to our notice by the learned counsel for the petitioner. In that case the petitioner was convicted for offences under sections 366/376. P. P. C. read with M. L. R. 36 and sentenced to five years' R. I. His brother Muhammad Riaz and sister Mst. Salma Akhtar who were also tried with him, were, however, acquitted, the latter by the trial Court and the former by the High Court. His own appeal before the High Court having failed, his petition for special leave to appeal was also dismissed by this Court. But in the proceedings for review of the judgment this Court observed :‑ "As the scope of review in criminal matter is confined to an error of law on the face of the order, we cannot enter upon fresh examination of evidence as desired by the learned counsel. However, in the circumstances of the case, we reduce the sentence awarded to Irshad to the period already undergone on both the counts. The State Counsel has no objection to our adopting this course." It appears that this case was disposed of on its own facts and the order does not even give any reasons for reducing the sentence awarded to the petitioner by way of review to which the State counsel did not object. In the peculiar circumstances of that case it cannot be relied upon as a prece dent and is distinguishable.

43. From what has been said in the preceding paragraphs, it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self‑evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination. The contention that the exposition of the law is incorrect or erroneous, or that the Court has gone wrong in the application of the law to the facts of the particular case ; or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review. However, an order based on an erroneous assumption of material fact, or without adverting to a provision of law, or a departure from an undisputed construc tion of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review, or a finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review.

44. It is also to be borne in mind that as finality attaches to the judgments delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of a re hearing of the whole case, nor is it an appeal against the judgment under review. It is accordingly not permissible to embark upon a reiteration o the sane contentions as were advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to be apparent on the face of the record.

45. It is further to be noted that it is well settled that in criminal matters the Supreme Court will not interfere in review with the quantum of sentence, if a legal sentence has been imposed, or upheld, after due consideration of all the relevant circumstances.

46. We now proceed to examine, in the light of these principles, the large number of submissions made by Mr. Yahya Bakhtiar in support of this review petition.

47. Mr. Yahya Bakhtiar has devoted considerable time to showing that there is an error patent on the face of the record inasmuch as while coming to the finding that ammunition of the Federal Security Force of 7.62 mm. bore and bearing the marking of 661/71 was used in the incident, the majority judgment has not given proper effect to its findings that the empties might have been substituted, and that the recovery memo prepared at the spot was not genuine, nor to the fact that Lt.‑Col. Wazir Ahmad, the author of letter Exh. P. W. 3912 was not examined at the trial to prove the marking of the ammunition supplied to the Federal Security Force, and that the evidence of Fazal Ali (P. W. 24) and the documents produced or proved by him were not free from suspicion and that, in any case, they did not mention the marking of the ammunition in question.

48. It will be recalled that the essence of the prosecution case is that in the execution of the conspiracy entered into between the petitioner and approver Masood Mahmood, into which other officials of the Federal Security Force were inducted at various levels, including approver Ghulam Hussain and the three confessing accused, the attack on the car of Ahmad Raza Kasuri, in the early hours of the morning of the 11th of November, 1974, was carried out by the personnel of the Federal Security Force, using arms and ammunition belonging to the Force. Approver Ghulam Hussain gave details of the arrangements made by him in this behalf for the purpose of obtaining ammunition and arms from the F. S. F. Armoury at Rawalpindi and the Third Battalion of the Federal Security Force at Lahore, under the‑directions of appellant Mian Muhammad Abbas, and with the assistance of appellant Ghulam Mustafa. The details of the marking and the bore of the ammunition supplied to Ghulam Hussain, and of the empties found at the spot were sought to be proved by the prosecution for the purpose of corroborating the relevant portions of the testimony of this approver. The confessions made by three accused, namely, Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad were also tendered in evidence so as to be taken into consideration not only against these accused persons but also against the other two accused, namely, the petitioner and Mian Muhammad Abbas.

49. Now, all the seven Judges of this Court have found that the confessing accused Ghulam Mustafa, Arahad Iqbal and Rana Iftikhar Ahmad were involved in the incident, and they were admittedly members of the Federal Security Force. The entire Court has further found that approver Ghulam Hussain master‑minded this attack. In coming to the finding that the personnel of the Federal Security Force were involved in the attack, all the Judges have taken into account not only the confessions of the three accused holding them to be voluntary and genuine, but also the other evidence available on the record.

50. As to the identity of the ammunition issued to approver Ghulam Hussain, and subsequently used in the attack, the majority judgment has relied not only on the recovery memos but also on the other documentary evidence showing the supply of 7.62 mm. ammunition to the units of the Federal Security Force from the Central Ammunition Depot, Havelian, and this evidence has also been accepted by our learned brother Dorab Patel, J., who has gone to the extent of observing that even the incorrect description of the marking of the ammunition in the recovery memo prepared by Abdul Hayee Niazi (P.W. 34) describing the same as BBl/71 instead of 661/71 was apparently due to his examination of the crime empties in insufficient light. The bore of the ammunition used in the attack also stood established' from the examination of the core of the bullet recovered from the head of the deceased, and sent to the fire‑arms expert for examination after having been sealed in a tube by Dr. Sabir Ali (P.W. 7). In the circumstances, there w considerable evidence to establish the fact that the ammunition issued to Ghulam Hussain, and used in the incident, was of the same bore as was admittedly available with the Federal Security Force.

51. In this background, the question is whether the submissions made by Mr. Yahya Bakhtiar as to the error appearing in the majority judgment has any bearing on the essential and central fact of the use of the personnel and arms and ammunition of the Federal Security Force in this incident. Even if the genuineness of the recovery memo. recorded by Sub‑Inspector Abdul Hayee Niazi on the 11th of November, 1974, is doubted, there is his oral testimony as to the marking he had found on the crime empties. In this state of the record the lengthy arguments submitted by Mr. Yahya Bakhtiar on the question whether the prosecution had positively succeeded in establishing the marking found on the crime empties, apart from being in the nature of a rehearing of the case, lose most of their relevance. It is well established that it is not necessary for the prosecution to provide corroboration of each single particular narrated by the approver ; what is necessary is that the corroboration must lend assurance to the basic facts narrated by him and also connect the accused with the crime. In the present case there are two distinct aspects of the prosecution evidence ; one linking the petitioner with the conspiracy ; and the other giving details of the manner in which the execution of the conspiracy was organised and carried out by the subordinate officers of the Federal Security Force. The evidence of approver Ghulam Hussain having been accepted by the majority as to the conspiracy and its execution, and by the minority only as to the mode of the occurrence, the points now urged by Mr. Yahya Bakhtiar have no effect on the fate of the case.

52. Mr. Yahya Bakhtiar's contentions as to the effect of non‑production of Lt: Col. Wazir Ahmad to prove the letter Exh. P. W. 39/2, and to the quality of the evidence given by Fazat Ali (P.W. 24) on the question of supply of F. S. F. ammunition to approver Ghulam Hussain well as the supporting documents relied upon by him in the shape of his stock Register and the relevant road certificates, really seek a re‑examination of this mass of evidence on the ground that an erroneous view has been taken regarding its admissibility and reliability, or that erroneous inference have been drawn therefrom. This exercise is outside the scope of review, and it is clear that even if the recovery memo in question as prepared b the Investigating Officer Abdul Hayee Niazi is kept out of consideration, the finding as to the nature of the ammunition used in the attack is sustainable on the basis of the other evidence available on the record, particularly the calibre of the core of the bullet recovered from the head of the deceased. All these matters are discussed at length in the relevant paragraphs of the majority judgment. On this view of the matter the submissions made b Mr. Yahya Bakhtiar as to the identity of the crime empties do not justify a review of the basic conclusions reached in the majority judgment as to the employment of the personnel and ammunition of the Federal Security Force in the attack which resulted in the death of Nawab Muhammad Ahmad Khan deceased. It may be added that in paragraph 721 of the judgment, to which special reference was made by Mr. Yabya Bakhtiar in this connection, conclusions as to the identity of the ammunition used in both the Islamabad and Lahore incidents were stated, and the present objections are mainly directed towards the Lahore incident, as the 'recovery memo. prepared by the Investigating Officer at Islamabad (Exh. P. W. 23/3), whose genuineness and authenticity is not disputed, clearly showed the marking of the empties as 661/71, and the report of the fire‑arms expert showed that the empties were of 7.62 calibre and of Chinese origin. The majority judgment takes note of this fact as well for corroborating part of the testimony of approver Ghulam Hussain.

53. Before parting with this aspect of the case, a few words might be said on the submission made by Mr. Yahya Bakhtiar that the contents of his Note No. 28 dated the 17th of December, 1978, have been misconstrued in paragraphs 557 and 710 of the majority judgment to mean that he had given up his objections regarding the admissibility of letter Exh. P. W. 39/2 dated the 28th of August, 1977, which gave details of the bore and markings of the stock of ammunition supplied to the Federal Security Force from the Central Ammunition Depot in 1973. The learned counsel submitted that the note in question was concerned only with the effect of non‑production of Lt.‑Col. Wazir Ahmad, the author of this letter, as a witness at the trial by the prosecution, but his objection as to the admissibility of the letter, without having been proved by the author, remained intact, and was reiterated in his note of the 17th of December, 1978, while dealing with the question of the use of section 510 of the Cr. P. Code. He contended that it was for the prosecution to prove that ammunition of 7.62 calibre and bearing the marking 661/71 had not been supplied by the Central Ammunition Depot to any other unit of the Civil Armed Forces, but as the learned Prosecutor conceded that he could not prove any such fact, the defence did not press for the examination of Lt.‑Col. Wazir Ahmad. It appeared to the learned counsel that this was an error apparent on the face of the record which vitiated the conclusions reached in the majority judgment as to the marking of the ammunition available with the Federal Security Force.

54. It will be seen that it is conceded that in Note No. 28 submitted by the defence counsel during the arguments of the appeal, the objection as to the effect of the non‑production of Lt: Col. Wazir Ahmad was given up for the reason that the Public Prosecutor had conceded that ammunition bearing the marking 661/71 and 7.62 calibre may have been supplied to other units of the Civil Armed Forces as well. It is clear that in this statement there is an implicit concession that the ammunition of this description had been supplied to the Federal Security Force. In this context the majority judgment could legitimately take the view that the objection as to the admissibility of Lt.‑Col. Wazir Ahmad's letter giving the description of the ammunition supplied had been given up. However, even if effect is now given to the submission made by Mr. Yahya Bakhtiar that the aforesaid letter was not admissible without having been proved by its author, the fact remains that Fazal Ali's evidence, supported by the stock Register, road certificates and vouchers etc., produced by him and accepted by the majority judgment as reliable documents, showed that the Federal Security Force's Armoury at Rawalpindi had several lacs of rounds of ammunition of 7.62 bore received in 1973 and 1974, and that at least 60,000 rounds of this calibre received in 1974 bare the marking 661/71. These facts would suffice to serve as corroboration of the prosecution case that ammunition of the type in use of the Federal Security Force of 7.62 mm calibre was employed in the Lahore incident, a fact which also stood fully proved by the examination of the core of the bullet which killed the deceased, and was recovered from his head. It appears to us, therefore, that nothing turns on the very elaborate submissions now made by Mr. Yahya Bakhtiar on this point, apart from the fact that an error apparent on the face of the record is not one which requires elaborate argument for its discovery.

55. The next submission made by Mr. Yahya Bakhtiar as to the identity of the empties found after the Islamabad and the Lahore incidents was that the majority judgment had not properly interpreted and applied section 510 of the Criminal Procedure Code, with the result that the reports signed by Major Fayyaz Haider on behalf of the Chief Inspector of Armaments as to the calibre and marking of the ammunition used in these incidents have been admitted in evidence as properly proved documents, although they were in admissible for the reason that Major Fayyaz Haider was not examined as a witness at the trial, nor was it shown that he was a fire‑arms expert appointed by the Government for the purpose of section 510 of the Criminal Procedure Code, and this deficiency could not be made up by the evidence of Col. Zawar Hussain, another officer of the same Inspectorate.

56. We find that these very submissions were made by Mr. Yahya Bakhtiar at the time of the hearing of the appeal, and all these points have been dealt with at length in paragraphs 543 to 555 of the majority judgment ; and from the evidence available on the record we have found that Major Fayyaz Haider was a fire‑arms expert appointed by the Government, and as such the reports signed by him were admissible under section 510 of the Cr. P. C. The contention that the law laid down as to the true interpretation of this) section is not correct, or that it has not been properly applied to the facts of this case, does not constitute a valid ground for review, as the conclusion in question have been reached after a full consideration of the arguments advanced on behalf of the petitioner. In exercising the power of review the Court has no jurisdiction to hear an appeal against its own judgment so as to reverse an interpretation previously given or an inference previously drawn in the judgment under review. For these reasons it would be inappropriate to examine this matter over again by traversing the same grounds as were urged at the initial bearing of the appeal.

57. A grievance made by Mr. Yahya Bakhtiar that the points mentioned by him in his final note submitted on 14‑1‑1979 in reply to the arguments of the learned Special Public Prosecutor had not been referred to in the majority judgment, is misconceived for the reason that the submissions made in that note were only a reiteration of the earlier arguments which had been presented during the hearing of the appeal. The only point which seems to have been omitted from being dealt with in the majority judgment is that the core of the bullet recovered from the head of the deceased was not sent for examination in the course of proceedings under the Criminal Procedure Code, and, therefore, for that reason as well the relevant report Exh. P.W. 32/2 dated the 7th of January, 1975 was not covered by section 510 of the Code. This argument is untenable, as the core of the bullet recovered from the head of the deceased was in the possession of the Investigating Officer Abdul Hayee Niazi, and his evidence shows that he sent it for examination through Muhammad Sarwar, A.S.I. on 24‑12‑1974 under the directions of the D.S P. (see page 631 of the evidence). It appears that this step was probably taken by the Investigating Officer in pursuance of a direction given by Mr. Justice Shafi‑ur‑Rehman, during the course of the Inquiry held by him, but this direction was clearly to remedy a defect in the investigation of the case, as the core of the bullet should have been referred for expert examina tion, in the first instance, alongwith the crime empties. As a result, the reference to the Inspectorate of Armaments for the examination of the core of the bullet remains a reference under the Criminal Procedure Code, for the purposes of the investigation of this case. Its nature will not change simply because certain information was supplied by the fire‑arms expert to the High Court on this point.

58. Mr. Yahya Bakhtiar then contended that the majority judgment has failed to give full effect to the non‑matching of the crime empties with the guns of the Third Battalion of the Federal Security Force, stationed at Walton at the relevant time, from which the weapons used in the incident were allegedly taken by the confessing accused Ghulam Mustafa and supplied to the appellants Arshad Iqbal and Rana Iftikhar Ahmad; that the prosecu tion had failed to prove substitution of the crime empties, and the majority judgment, proceeds on the probability that there might have been substitution of the empties, thus giving the benefit of doubt to the prosecution rather than the defence. The learned counsel submitted that this was a serious error having a vital bearing on the fate of the case, as non‑matching of the crime empties with the guns in question was destructive of the entire prose cution case.

59. We find that the effect of the negative report of the Ballistics expert on the question of the matching of the guns of the Third Battalion of the Federal Security Force with the crime empties was argued at length during the hearing of the appeal, and has been dealt with in the majority judgment in paragraphs 712 to

720. Precisely the same contentions were raised by Mr. Yahya Bakhtiar, but they were repelled, and the conclusions reached were expressed in paragraph 720 of the judgment as under; "It seems to me that in the peculiar circumstances of the present case, namely, where the empties were not sealed at the spot, and they were not sent for examination for 12 days, and the alleged weapons of offence were not made available for comparison for at least three years, the pro secution is right in submitting that the non‑matching of these empties with any of the guns of the Third Battalion of the Federal Security Force would not have the effect of destroying the prosecution case, especially when there are a number of statements made by the concerned officials that the empties were not sealed at the spot but they were apparently handled by various high officials during the period intervening between their recovery and despatch to the expert. It is not a question of giving any benefit to the prosecution, but of deciding whether the negative report as to the matching of the guns with the crime empties would necessarily destroy the evidence of Ghulam Hussain approver. In the circumstances explained above I am of the view that this conse quence does not follow in this case."

60. All the submissions now made by Mr. Yahya Bakhtiar are in the nature of re‑arguing this point on the same lines as was done during the hearing of the appeal. This is clearly beyond the scope of review proceedings. Further, we are of the view that even on merits the conclusions reached are in accordance with the facts of the case, and not in violation of any principle governing the administration of criminal justice.

61. The next point made by Mr. Yahya Bakhtiar concerns the manner of the attack on the car of Ahmad Raza Kasuri, and the kind of weapons from which it was made, as well as the number of assailants who participated therein. He contended that while examining the narration of evidence given by approver Ghulam Hussain in this behalf and the confessional statements made by accused Arshad Iqbal and Rana Iftikhar Ahmad, the majority judgment had misread the site plan Exh P. W 34/2 as prepared by the Investigating Officer Abdul Hayee Niazi (P. W. 34) and there is also a patent error in placing reliance on the site plan prepared by draftsman Inaam Ali Shah (Exh. P. W. 34/5‑D) which was not accepted as correct even by the prosecution. He further submitted that even in making use of the site plan prepared by the draftsman, the majority judgment had erred in basing its inferences on the erroneous assumption that was equal to 10 Cms. whereas, in fact, it was equal to 2.54 Cms. with the result that there had been a serious mistake in calculating the distances between the places where the crime empties were found at the spot, and also in concluding that they had been fired from weapons of Chinese origin, and that in this behalf the result of the demonstration of firing of Chinese automatic weapons, as seen by the Court could not be used as substantive evidence in support of the prosecution case. Finally, be submitted that the majority judgment bad also acted on the conjectures and surmises in reconstructing the incident by observing that the assailants might have run after the moving target as it negotiated the Round about, as, in fact, the confessing accused or approver Ghulam Hussain bad not made any such positive statement, except the facts stated by approver Ghulam Hussain that Rana Iftikhar Ahmad had turned around. The sum and substance of Mr. Yahya Bakhtiar's submission was that on account of these obvious errors, the majority had been misled into thinking that the attack was launched with automatic weapons of Chinese origin by two assailants only, whereas the position of the crime empties showed that they may not have been fired from Chinese weapons.

62. It may be stated at once that the learned counsel for the petitioner is right in pointing out that the correctness of site plan Exh. P. W. 34/5‑D, as prepared by draftsman Inaam Ali Shah was questioned by the prosecution, and, on a comparison with the visual plan prepared by the Investigating Officer at the spot, namely, Exh. P. W. 34/2, certain differences are, indeed, noticeable; and for that reason it would have been preferable to avoid references to the questioned site plan. It has however, to be stated that references to it were made by Mr. Yahya Bakhtiar himself for the purpose of contending that the position of crime empties shown in this plan was different from the one shown in the visual site plan prepared by the Investigating Officer.

63. It is also correct that 1 is not equal to 10 Cms. and it is, therefore, possible that this mathematical error may have led to incorrect inferences from the draftsman's site plan as to the distances between the places where the crime empties have been shown in this plan. In the circumstances, taking into account the facts that the site plan in question was not relied upon by the prosecution, and that in its interpretation a mathematical error crept into the calculations made in the majority judgment, we would discard any inference based on the use of this site plan.

64. The question, however, is whether the findings recorded in the majority judgment on the question of the kind of weapons from which the firing was, done on the car of Ahmad Raza Kasuri stand vitiated on this account; And does it necessarily follow that the prosecution case as to the use of the arms and ammunition of the Federal Security Force, as deposed to by approver Ghulam Hussain and supported by the confessional statements, stands demolished. A reply to these‑ questions has already been given in the preceding paragraphs when dealing with the lengthy submissions made by Mr. Yahya Bakhtiar as to the identity of the crime empties found at the K spot. It will bear repetition to state that the essential question before the Court was whether there was available on the record any corroboration of the account of the incident as given by approver Ghulam Hussain, who had asserted that he had carried out the attack with the help of personnel, arm and ammunition of the Federal Security Force. It has already been state that all the seven Judges of this Court have unanimously accepted the fact that Ghulam Hussain had master‑minded the attack, and that the two confessing accused Arshad Iqbal and Rana Iftikhar Ahmad did actually mount the attack; and, further, that confessing accused Ghulam Mustafa had aided them by helping in the selection of the site at which the attack was to be launched on the car of Ahmad Raza Kasuri. Reference has also been made to the other evidence, both oral and documentary, in coming to the conclusion that ammunition of 7.62 mm. calibre was employed. One of the pieces of evidence in this behalf was the result of the expert examination of the core of the bullet recovered from the head of the deceased. Even if, therefore, the questioned site plan; and the doubtful or incorrect mathematical calculations based thereon, are completely excluded from consideration, the finding that the attack was mounted with Chinese automatic weapons by the persons named by approver Ghulam Hussain remain intact. It is well established that for an error on the face of the record to justify a review of the judgment, it must be shown that the findings recorded therein could not be otherwise sustained. This is not the case here.

65. As to the actual manner of attack, it is true that in the relevant paragraphs of the majority judgment an attempt has been to reconstruct the incident, and in doing so reference has been made to the natural course of events surrounding an attack on a moving target. Here again even if these references are deleted, the manner of attack, as narrated, by approver Ghulam Hussain is not demolished, as suggested by Mr. Yahya Bakhtiar, for the reason that the empties were found at four different places, and the demonstration of firing as seen by the Court had shown that 7.62 mm. calibre ammunition fired from Chinese automatic weapons did not fall in a perpendicular line, but fell scattered towards the right, mostly to the rear of the firing line, but sometimes also ahead or in front of the firing line. The result of the demonstration was obviously not substantive evidence in the case, but it helped to explain to the Court the kind of result which could be achieved by firing from Chinese automatic weapons, which were in the use with the Federal Security Force at the relevant time. It was as a result of the collective effect of all these circumstances that the whole Court accepted the fact that the actual attack was mounted by the men of the Federal Security Force as master‑minded by approver Ghulam Hussain, and with the aid of Ghulam Mustafa. On this view of the matter, the errors pointed out by Mr. Yahya Bakhtiar do not have any effect on the essential finding recorded in the majority judgment. For the same reason it becomes unnecessary and irrelevant to go once again into the question of the possibility of the empties falling in a bunch or in a scattered form, an argument to which considerable attention was paid at the hearing of the appeal.

66. Taking now the contentions advanced by Mr. Yahya Bakhtiar for a review of the conclusions reached in the majority judgment as to the effect of the failure of the High Court to pass a formal order under sec tion 540‑A of the Criminal Procedure Code and to record reasons in that behalf, I find that the emphasis of the learned counsel is on the fact that having found that the law envisages strict compliance with the mode of exercise of ibis discretionary jurisdiction, the majority judgment errs in holding further that it does not mean that any error, omission or failure to strictly comply with the provisions of this section must necessarily in every case result in the vitiation of the trial. In support of this main submission, the Review Petition (on pages 15 to 20) traverses the ground which had been discussed at length during the hearing of the appeal, namely that the peti tioner had fallen ill and that 15 important witnesses should not have been examined in his absence, as he had asked for an adjournment on the ground of his illness, and that there is no authority that the Court can impose an order under this section when the accused is seriously ill and asks for an adjournment. It is further stated that this Court has also fallen in error in observing that in view of the importance of this case there was need for its expeditious disposal.

67. The detailed submissions made by Mr. Yahya Bakhtiar in relation to the application of section 5400.A of the Criminal Procedure Code have been dealt with at length in the majority judgment in paragraphs 183 to

252. These paragraphs fully bring out the meaning of the phrase "incapable of remaining before the Court", the effect of the failure of the Court to record reasons for proceeding under this section, and the question whether an order under this section can be made only on the 'request of the accused who is incapable of remaining before the Court. I am not persuaded by the submissions now made by Mr. Yahya Bakhtiar that there is, indeed, any error apparent on the face of the record in the exposition of the law relating to the scope and application of this section. The submissions now made only amount to an attempt to re-argue the whole matter, an attempt which clearly falls outside the scope of review in a criminal case.

68. It is, however, necessary to reiterate that the question whether in a given case the discretion vesting in the Court under section 540‑A has been properly exercised in accordance with judicial principles, is primarily a question of fact to be determined in the light of all the relevant circumstances of the case. Now, in the present case, the majority judgment has found that even though a speaking order, giving reasons, was not recorded, yet the circumstances justified the High Court in proceeding in the absence of the petitioner when he was incapable of remaining before the Court on account of his illness, and that the witnesses in question were cross‑examined a length by his counsel who were in daily touch with him to obtain instructions in this behalf. It has also been found that when the petitioner attended the trial after his illness, he did not ask for recalling any of the witnesses in question for further cross‑examination. I have not been able to discover any error apparent on the face of the record, such as would justify a review of these conclusions.

69. As to the submission that there is a contradiction in the Court observing on the one hand that the provisions of section 540‑A, Cr. P. C. should be strictly complied with, and on the other hand also stating that it does not mean that any error, omission or failure in that behalf must necessarily vitiate the trial, it is sufficient to say that this contention overlooks the true import of the provisions contained in section 537 of the Criminal Procedure Code, which have also been elaborately examined in the majority judgment. In paragraph 181 of the judgment it has been observed that: "It will thus be seen that in determining whether ' an ' omission, error or, irregularity in the conduct of the trial, using the phrase so as to embrace all aspects thereof, has vitiated the trial in any manner, they Court must look to the substance and not to technicalities; and if the accused has had a fair trial, and has not been prejudiced in his defence then the error, omission or irregularity would stand cured under the provisions of section 537 of the Code. And as the distinction between an illegality and an irregularity is, to borrow the words of Sir John Beaumont of the Privy Council (in A I R 1947 P C 67), only one of degree rather than of kind, nothing turns on this distinction for the purposes of the application of this curative section.",

70. This being the true position as regards the curing of any errors, omissions or irregularities in complying with the provisions of any pa of the Code of Criminal Procedure, it is clear that the same position would obtain in regard to the application of section 540‑A of the Code, and there is no question of any contradiction between the two observations pointed out by Mr. Yahya Bakhtiar.

71. The review petition has devoted considerable space (from pages 23 to 43 and from pages 169 to 183) to the question of bias. I have carefully perused the grounds contained in these pages, and I cannot help remarking that they are in the nature of a repetition of the submissions which had been so elaborately presented by Mr. Yahya Bakhtiar during the hearing of the appeal. If, after a detailed consideration of his submissions, and the legal position obtaining in regard to the allegations of bias against Judges of superior Courts, the majority judgment has not accepted the view canvassed by Mr. Yahya Bakhtiar, that does not furnish a ground for review.

72. In the majority judgment the question of bias has been discussed at length in paragraphs 841 to 915, with the following result: ' "In the light of the declared law and the facts discussed above I have reached the conclusion that although some of the orders made by the trial Bench in the day to` day conduct of the case may not have been correct on a strict view of the law; and some others may not have been fully called for in the facts and circumstances of the case, yet these were all matters within the discretion of the Court, and mere error therein cannot amount to proof of bias. The appellant was unfortunately misled into thinking from the very start of the case that the learned Acting Chief Justice was biased against him. There was, in fact, no factual basis for such an apprehension. In any case, there was no such apprehension in respect of any of the other four learned Judges constituting the Bench. The trial of ; the appellant has by and large been conducted substantially in accordance with law, and the conclusions reached by the High Court on the merits of the case have been found to be correct on detailed analysis of the evidence and the law. I would, therefore, repel the` contention that the trial was, in any manner, vitiated by reason of bias on the part of the Presiding Judge of the Bench.

73. In the face of this conclusion, it is futile to contend that the majority judgment has not taken into account the cumulative effect of the large number of instances of alleged bias narrated and discussed 'at the Bar during the hearing of the appeal. It is, in fact, regrettable that even minor instances, which were allowed to be discussed during' the hearing of the appeal so as to bring out the real grievance of the petitioner, have been paraded once again in this petition, so as to provide justification for a 'review of the conclusions reproduced above. The submissions made by Mr. Yahya Bakhtiar to justify a review of these findings are entirely misconceived and untenable.

74. It is next contended by Mr. Yahva Bakhtiar that the majority judgment has misread the evidence of driver Muhammad Amir (P. W. 19) in coming to the conclusion that the Log Book of the jeep alleged to have been used by approver Ghulam Hussain and the confessing accused on the day of the incident was not being written up by the official whose duty it was to maintain the same, and, therefore, inadmissible under section 35 of the Evidence Act. The learned counsel submits that it was not the duty of the driver of the jeep to write the Log Book, but of the person who travelled in it, or of the Motor Transport Officer, and that the evidence of the driver shows that this procedure was fully observed.

75. After examining the scope of section 35 of the Evidence Act, the majority judgment concludes, in paragraph 305, that the essential requirements for the application of section 35 of the Evidence Act are that the entry, that is 'relied upon, most be one in any public or other official book, register or record ; that it must be an entry stating the facts in issue or a relevant fact ; and that it must be made by a public servant in the discharge of his official duty, or any other person in performance of a duty specially enjoined by the law. Applying these principles to the Log Book in question, it was held that it had to be treated as a book or register maintained by the driver‑in the discharge of his official duty ; and the only question was whether it was being regularly maintained by the official concerned, namely, the driver of the jeep and that in the state of affairs disclosed by driver Muhammad Amir, the pre sumption mentioned in illustration (e) to section 114 of the Evidence Act regarding the regularity of judicial and official acts could hardly be invoked in respect of this particular Log Book.

76. The criticism of Mr. Yahya Bakhtiar is that while describing the system of maintaining the Log Book,, the driver had made it clear that the entries in the Log Book were to be made by the officer who travelled in the vehicle, and that so long as he remained attached with Ghulam Mustafa, the latter used to make the entries in the Log Book whenever he travelled in the jeep and, therefore, there fuss no 'room for holding that the Log Book was not being properly maintained or written up. It is correct that driver Muhammad Amir has made the statement referred to by Mr. Yahya Bakhtiar ; but he has made other statements also, which have a' direct' bearing on the question, we Are considering: In his examination‑in‑chief Muhammad Amir stated that "Inspector Sufi Ghulam Mustafa did not use to make entries regularly or correctly. Sometimes, he used to make entries later on". Again, in answer to questions put to him by Mr. D. M. Awan, learned counsel for the petitioner, after making the statements relied upon by Mr. Yabya Bakhtiar, Muhammad Amir went on to state that "Ghulam Hussain, Inspector, did use this jeep sometimes . . . . Ghulam Hussain, Inspector; used to drive away this jeep unaccompanied. `. . . . . . . Although Ghulam Hussain travelled in the jeep number of times alone, he would not make the entries in the Log Book They were made by Sufi Ghulam Mustafa". From these statements it would appear that all the entries in this Log Book were not being regularly made by the officer authorised in this behalf, namely, the one who travelled in the jeep; According to the driver, Ghulam Hussain never made any such entries even though be used the jeep ; and instead it was Sufi Ghulam Mustafa who wrote the entities even when Ghulam Hussain bad used the vehicle.

77. Taking all these statements of Muhammad Amir together, I find that the conclusion reached in the relevant paragraph of the majority judgment is' dully in accord with the evidence of the driver, namely, that the Log Book was not being regularly written up by the person authorised in this behalf. There is, accordingly, no room for reviewing this part of the judgment in relation to the Log Book and its admissibility under section 35 of the Evidence Act.

78. It was next argued that while scrutinising the evidence of approver Ghulam Hussain (P. W. 31) the Court bad fallen in error, and misread the evidence on record, as regards, a number of important contradictions and improvements pointed out by the defence, which had a vital bearing on the question of his reliability. In amplification of this submission, Mr. Yahya Bakhtiar has taken pains to refer us to a large number of grounds given in the Review Petition, dealing with different parts of the statement made by Ghulam Hussain approver in Court, and the other evidence or material having a bearing thereon, like his T. A. bill and his previous state ments etc. The submission of the learned counsel, in effect is, that the Court should undertake a re‑appraisal of Ghulam Hussain's evidence and hold that he was not worthy of credit.

79. We find that the majority judgment has, quite naturally, devoted considerable attention to the detailed appraisal of the evidence of approver Ghulam Hussain. Various aspects of his evidence have been dealt with at length in 53 paragraphs of the judgment, namely, paragraphs 661 to 711, and paragraphs 722 and

723. Paragraphs 661 to 667 contain a preliminary appraisal of his evidence in order to determine whether he satisfies the first test applicable to an approver, and these paragraphs also incidentally contain references to several pieces of corroborative evidence brought on the record. Paragraphs 668 to 675 deal with the question of further corroboration of his evidence by reference to the details of the Islamabad incident and the present occurrence ; followed by paragraphs 676 to 704 dealing with defence criticism of Ghulam Hussain's evidence. The alleged omissions, improvements, con tradictions and falsehoods found by the defence in his evidence are then discussed at length in paragraph 705 which contains 19 items, and para graph 706, containing 40 items. This detailed discussion is then followed by paragraphs 707 to 711 containing our conclusions and also mentioning some further items of additional corroboration of his evidence ; and finally in paragraphs 722 and 723 the majority judgment states that "the cumulative effect of this evidence and the circumstances is that the statement made by approver Ghulam Hussain as to the circumstances of the crime can be acted upon" : and "as a result it stands proved upon the record that Ghulam Hussain was inducted into the conspiracy by appellant Mian Muhammad Abbas, and that, in association with appellant Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad he organised and carried out the attack on Ahmad Raza kasuri's car during the course of which Kasuri's father was killed."

80. A perusal of the lengthy submissions made by Mr. Yahya Bakhtiar at the Bar, as well as of the relevant grounds mentioned in the Review Petition, leaves us in no doubt that what the learned counsel is striving to achieve is a re‑appraisal of the evidence of Ghulam Hussain and of the corroboration relied upon by the Court in support thereof, but, as observed by our learned brother Haleem, J., in the case of Ghulam Sarwar and another (1979SCMR43) which was also a case of difference of opinion between the Judges comprising the Bench which had decided the case, in the first instance, such an exercise is beyond the realm of Review Jurisdiction as it is not an appeal where recourse can be had to the appraisal of evidence and corroboration which is a matter essentially inter‑woven with it. The majority judgment has already given detailed and elaborate consideration to all the aspects of Ghulam Hussain's evidence, and the corroboration available in that behalf as were urged on behalf of the petitioner a the hearing of the appeal. The conclusions reached after a due consideration of all the relevant circumstance are not open to interference in review proceedings on the ground that reappraisal might yield a different result. The points now urged against the credibility of Ghulam Hussain, are, with respect to the learned counsel, much too trivial and inconsequential to affect the unanimous conclusion of all the seven Judges of the Bench to the effect that Ghulam Hussain approver was at least master‑minding the whole operation.

81. Mr. Yahya Bakhtiar also made a grievance of the fact that in paragraph 680 of the majority judgment his submission that there was a conflict between the statement of Ghulam Hussain approver in Court and the confessional statements of Arahad Iqbal and Rana Iftikhar Ahmad on the question whether Ghulam Hussain had also fired a shot during the course of the incident, had been misconstrued by the Court, inasmuch as the argument attributed to him in the said paragraph is as if in his confessional statement Ghulam Hussain had accepted the fact that he also opened fire. The learned counsel submits that Ghulam Hussain had not admitted firing any shot in his confessional statement, but on this point he stood contradicted by the confessional statements of Rana Iftikhar Ahmad and Arshad Iqbal.

82. We have verified the factual position, and Mr. Yahya Bakhtiar is right in saying that even in his confessional statement Ghulam Hussain approver had not admitted to having opened fire during the course of the incident. In other words he has consistently denied having opened fire, and it is correct that in this behalf he stands contradicted by the confessions of the other two accused. It was for this reason that Mr. Yahya Bakhtiar submitted that the approver was trying to minimise his part and to exculpate himself, and it ' showed that he was, in fact, not present in Lahore on that day and was thus not a reliable witness.

83. While dealing with this submission in paragraphs 681 and 682, the majority judgment took note of the fact that there was, indeed, a tendency on the part of approvers to minimise their involvement, but as pointed out by the Indian Supreme Court in A I R 1966 S C 1273, the question always was whether on their statements the approvers would be held guilty or not, and, accordingly, their testimony is not to be rejected because the tried to slur over their own share in the affair. Following this rule, it was held that Ghulam Hussain's attempt to deny that he had also opened fire during the course of the incident could not lead to the rejection of his testimony as to his presence at the spot.

84. The submission now made by Mr. Yahya Bakhtisr as to the error found by him in paragraph 680 of the judgment does not, in any manner, detract from this conclusion, as the error is of an inconsequential nature, and the essential point regarding the conflict between Ghulam Hussain's testimony in Court and the confessional statements of Rana Iftikhar Ahmad and Arshad Iqbal had been duly considered by the Court before reaching its conclusion in paragraph

682. The contention is, therefore, without merit.

85. Another point made by Mr. Yahya Bakhtiar in this context was that there were several other contradictions also between the testimony of approver Ghulam Hussain and the confessions of accused Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmad, but they had either not been considered by the Court, or not given due weight Apart from the discrepancy on the question whether Ghulam Hussain had opened fire at the spot or not, Mr. Yahya Bakhtiar particularly mentioned the question whether after the incident Ghulam Hussain had telephoned to Mian Muhammad Abbas at Rawalpindi as Mian Muhammad Abbas was not at Rawalpindi on that day, being away to Peshawar on tour. He next mentioned the fact that while Ghulam Hussain stated that he had asked Arshad Iqbal and Rana Iftikhar Ahmad to fire in the air; yet they stated in their confessions that they fired indiscriminately at the car. The effort of the learned counsel was to show that on account of these discrepancies, it should have been held that Ghulam Hussain's evidence could not be relied upon.

86. We regret we do not see any substance in these submissions. The essential and basic question in the case revolved round the fact whether the personnel of the Federal Security Force mounted the attack as asserted by approver Ghulam Hussain, and whether they did so in accordance with the arrangements made by approver Ghulam Hussain under the directions given to him by Mian Muhammad Abbas. The ancillary questions whether after the incident Ghulam Hussain telephoned to Mian Muhammad Abbas at Rawalpindi or not ; and whether the firing was carried out exactly in accordance with the directions of Ghulam Hussain or not do not, in any manner, affect the basic question of the identity of the assailants and the arrangements under which the attack was mounted. Accordingly, nothing turns on the omission or otherwise of the Court to deal with these supposed contradictions, between the testimony of the approver and the confessions of the accused. The confessions lend full support to the approver's statement as to the essential facts of the case.

87. Mr. Yahya Bakhtiar further contended that Amir Badshah Khan, Incharge of the 3rd Battalion, FSF (Walton), Lahore (P. W. 20) has deposed that arms and ammunition were drawn from him, i.e. his armoury in Walton, by Sufi Ghulam Mustafa accused thrice in the month of September, 1974, as follows;

S. No. Time Quantity Remarks 1. First week of 2 Pistols and these were soon September, 1974 16 cartridges returned 2 . A week later 1 sten gun + returned after the 30 cartridges murder of Nawabzada 2 pistols + Muhammad Ahmad 16 cartridges Khan 2 sten guns and 60 cartridges leaving a balance of 2 pistols 16 cartridges 3. After sometimes 1 sten gun + in September, 30 cartridges 1974. 88. He submitted that according to the confessional statement of Sufi Ghulam Mustafa accused ammunition/arms had been drawn by him from Amir Badshah Khan in November, 1974, and that, similar was the strain of the statement of Ghulam Hussain approver (P. W. 31) on pages 608 and 669 of his deposition, where he stated, that he was so told by Sufi Ghulam Mustafa accused. He also referred to the statement of Muhammad Amir, driver (P. W. 19) where he deposed that he took Sufi Qhulam Mustafa accused to the armoury of Amir Badshah Khan in his Jeep wherefrom Sufi Ghulam Mustafa accused brought something which was wrapped and which appeared to be arms, but as that statement does not, with any exactitude, fix the date or time, therefore, the same need not detain us .for its further examination here. However, proceeding with the statement of Amir Badshah Khan as reproduced above and the confessional statement of Sufi Ghulam Mustafa accused, and the statement of Ghulam Hussain approver (P. W. 31), Mr. Yahya Bakhtiar argued, that as there was inherent conflict between the aforesaid statements with regard to the time and period of withdrawal of the relevant arms/ammunition, it meant, that the prosecution case was false and totally untrustworthy. 89. The plea raised has no merit. No doubt this difference is there, but it does not mean, for example, that Ghulam Hussain approver was not in Lahore during those days ; nor does it mean that Sufi Ghulam Mustafa was not involved m the attack, because, on both these matters we have already given reasons which we do not want to recapitulate at this place. However, it may be pointed out, that if the statement of Amir Badshah Khan is analysed, it will show, that up to the date of the murder of Nawabzada Muhammad Abmad Khan, the accused Sufi Ghulam Mustafa had drawn from the 3rd Battalion, inter alia 2 sten guns and 60 cartridges. The fact that on the day of the attack, arms and ammunition of the 3rd Battalion were thus available with Sufi Ghulam Mustafa, remains well established on the record. In the circumstances the contradiction pointed out by the learned counsel, and the omission of the Court to take note of it in the majority judgment, have no bearing on the essential point involved. 90. Another point made by the learned counsel for the petitioner was that the evidence of Fazal Ali (P. W. 24) had been accepted without giving due consideration to the contradictions and improvements pointed out by the defence, which had a direct bearing on the question of the identity of the ammunition allegedly supplied by him to approver Ghulam Hussain. The learned counsel submitted that the omissions in his previous statement were so material that they had to be regarded as amounting to contradictions in view of the principle approved in this behalf in paragraph 295 of the majority judgment. Mr. Yahya Bakhtiar further submitted that even the learned Judges in the High Court had accepted the presence of certain omissions or contradictions in the evidence of Fazal Ali, while dealing with the subject in paragraphs 384 and 440 of their judgment. In particular he pointed out the following important instances :‑ (a) Omission of Fazal Ali to mention in his previous statement the direction given to him by Mian Muhammad Abbas for the supply of certain weapons on a chit to approver Ghulam Hussain for use in connection with the Islamabad incident ; (b) Part played by Mian Muhammad Abbas in regard to the making up of the deficiency of 51 empties ; and (c) The non‑production of the documents proved by him at the trial in regard to the issuance of ammunition to Ghulam Hussain and its return later after the incident. 91. There is no merit in these submissions for the reason that in the majority judgment Fazal Ali is relied upon mainly in relation to the documents, namely, the stock Register, some vouchers and the road certificates proved by him regarding the ammunition available in the F. S. F. armoury and issued to approver Ghulam Hussain and later returned by him after the incident. The question of issuance of weapons for the Islamabad incident was not directly in issue in the present case, and an assertion had been made at the trial by one of the Investigating Officers (Inspector Muhammad Boota), that Fazal Ali had given these details in another statement made by him under section 161 of the Criminal Procedure Code in relation to the Islamabad case, but we did not think it necessary to go into that question as the details of the Islamabad incident were not the subject‑matter of the present trial. Similarly the fact whether Mian Muhammad Abbas played any part in replacing the deficiency of 51 empties was only of peripheral importance as to the guilt of the petitioner. As regards the documents proved by Fazal Ali, it is correct that he had not produced them during the investigation of the case, but he did assert at that stage that he will produce the relevant record at the proper time. This objection has been dealt with in the maj6rity judgment at Item No. 8 on page 317 of the P L D report, where it is stated that‑

"the objections raised herein are fallacious. Fazal Ali in his statement under section

161. Exh. P. W. 39/9‑D, page 514 of the documents, had said that he would produce all the documents in the Court. The documents have come from proper custody." It would be seen, therefore, that the submissions now made by Mr. Yahya Bahhtiar do not, in any manner, call for a review of the conclusions reached in the majority judgment as to the documentary evidence furnished or proved by Fazal Ali (P. W. 24).

92. Mr. Yahya Bakhtiar further submits that there is an error apparent on the face of the record in the majority judgment when it proceeds to hold that Saeed Ahmad Khan (P. W. 3) is not an accomplice, after finding that he consciously suppressed certain relevant information from the Shafi‑ur‑Rehm3m Inquiry Tribunal, and tried to screen the real offender, namely, the. Federal Security Force. Mr. Yahya Bakhtiar also contends that the majority judgment has ignored an assertion made by Saeed Ahmad Khan that the petitioner had become his enemy, and also the fact that the witness was facing several inquiries before the Martial Law authorities, with the result that he could not be relied upon.

93. The question as to who is an accomplice, and the further question whether Saeed Ahma3 Khan could be so regarded, have been discussed at length in the judgment under review, and the conclusion reached in this behalf is that Saeed Ahmad Khan could not be treated as an accomplice. In arriving at this conclusion the part played by Saeed Ahmad Khan in meddling with the investigation of this case has been fully taken into account, and it has been held that‑

"he did not have any hand or conscious involvement in the hatching or execution of the conspiracy leading to the present murder, nor has he been shown to be misdirecting the investigation with the knowledge and intention of screening the offender from legal punishment. He was acting all along under the directions of his employer to clear the latter's name. According to the Lahore Police Officers, he was advising them to act with wisdom and caution, and also telling them that the Prime Minister had been falsely accused by Ahmad Raza Kasuri. In these circumstances it cannot be held that he could at all be charged under section 201 of the Pakistan Penal Code, and be tried jointly with appellant Zulfiqar Ali Bhutto and the other co‑accused."

94. Now, the inferences drawn in this paragraph may or may not be correct, but that is not a ground for review. In the circumstances the submissions now made by Mr. Yahya Bakhtiar amount to rehearing of this part of the case.

95. The submission that Saeed Ahmad Khan's involvement in some inquiries before the Martial Law authorities has not been taken into account is not correct, as this question has been dealt with in paragraphs 504 to 506 of the majority judgment and the contention has been rejected. I do not think it necessary to go over the same ground again.

96. As to the last submission in this behalf, namely, that Saeed Ahmad Khan had stated that the petitioner had become his enemy, it is correct that this point has not been specifically dealt with in any paragraph of the majority judgment,, but it has obviously no bearing on the credibility of his evidence. Even though he was shifted from the post of Chief Security Officer to the Prime Minister, yet he was retained in service until the end as an O. S. D. attached with the Attorney‑General for looking after the Hyderabad case. In the circumstances, nothing turns on the omission in the majority judgment to specifically deal with the statement made by Saeed Ahmad Khan at the trial that the petitioner had become inimical to him. From the absence of any discussion of this question in the majority judgment, it can safely be assumed that the point was not raised as such by Mr. Yahya Bakhtiar during the hearing of the appeal nor was it considered to be of any significance by the Court. Accordingly, no justification has been made out for reviewing the conclusions reached in the majority judgment as to the weight to be attached to the evidence of Saeed Ahmad Khan.

97. The next ground urged by Mr. Yahya Bakhtiar is that the majority judgment has erred in law in placing reliance on the secure reports, which were not proved : by their authors, and using their contents against the petitioner in violation of the rule laid down in Islamic Republic of Pakistan v. Abdul Wall Khan, and approved in this case. He has drawn specific attention to paragraphs 608, 609, 611, 616, 617 and 618 of the majority judgment to contend that conclusions have been drawn from the contents of the unproved secure reports, although the reports have been held to be inadmissible in evidence as they were not proved by their authors. He submits that this use of the secure reports is a patent error, and that even the conclusions drawn from these unproved contents are not correct.

98. The correct legal position as to the use of secure reports has been dealt with in paragraphs 481 and 482 of the majority judgment, and it is, indeed, correct that the rule laid down by this Court in the case mentioned by Mr. Yahya Bakhtiar was reiterated, namely, that the intelligence reports cannot be of any assistance in a judicial inquiry, unless their source is pro duced to give evidence before the Court. It has further been observed that the secure reports could be used for the limited purpose of showing the petitioner's interest in the activities and movements of Ahmad Raza Kasuri, as What was relevant was the fact that such reports were being sent to him from time to time and were also being perused by him, and the correctness of their contents was neither relevant nor in question.

99. Now, in the paragraphs of the judgment referred to by Mr. Yahya Bakhtiar, the Court has dealt with the large number of documents produced by the prosecution to prove the subsequent conduct of the petitioner in the matter of surveillance of Ahmad Raza Kasuri after the murder of his father. In order to give an intelligible description of the documents, it was clearly necessary to give some idea of their contents, but it is not correct to say the findings have been based on the unproved contents of these reports. A perusal of paragraphs 609 to 617 of the judgment would show that all these secure reports were invariably accompanied by forwarding notes written by either the Chief Security Officer to the Prime Minister, namely, Saeed Ahmad Khan (P. W. 3) or his Assistant the late Abdul Hamid Bajwa, and some of these notes bore the initials or other remarks of the petitioner in token of hi having seen them. In the forwarding notes recorded by the officers of the Prime Minister's Secretariat remarks and observations were made for the perusal of the Prime Minister, and it cannot be said that the contents of these notes. which were duly proved, were inadmissible in evidence. The conclu sions in paragraph 618 of the judgment are a summing up of the cumulative effect of these notes, some of which' were indeed, accompanied by secure reports. It is, therefore, not correct to say that the majority judgment ha based its conclusion as to surveillance of Ahmad Raza Kasuri on the un proved contents of secure reports; on the contrary the conclusions are based on the frequent notes submitted to the Prime Minister by the officers named above.

100. The contention that the inferences drawn from these documents are not well‑founded is clearly outside the scope of review, as the whole matte is not to be re‑argued simply on the ground that the Court has drawn an inference different from the one advocated on behalf of the petitioner.

101. Mr. Yahya Bakhtiar then submits that the Court has erred in hold ing that paragraph No. 15 of Mr. Justice Shafi‑ur‑Rehman's Report could not be regarded as secondary evidence of the statement apparently made by Ahmad Raza Kasuri before the Tribunal as regards the motive behind the attack launched on his car which resulted in the death of his father, as the authenticity of the observations contained in this particular paragraph of a judicial document could not be doubted.

102. This submission has been elaborated in the Review Petition at item No. 18 on pages 70 to 72 and it is contended that in coming to the conclu sion that Ahmad Raza Kasuri had not made any statement of the kind as is referred to in paragraph 15 of the Shafi‑ur‑Rehman Report, the majority judg ment has acted on mere conjectures and surmises in holding a judial docu ment to be incorrect, while even the prosecution has not made any allegation challenging the correctness of the said Report. It is further stated in the Review Petition that the Court has overlooked the fact that the petitioner bad requested for summoning Shafi‑ur‑Rehman, J. during the hearing of the case in the High Court, but this request was turned down. Lastly, it is asserted that the finding recorded as to paragraph 15 of the Report is con trary to the observations contained in paragraph 487 of the majority judgment.

103. I see no substance in these submissions. It is true that the request to summon Mr. Justice Shafi‑ur‑Rehman as a witness at the trial was not allowed by the High Court, but the entire record of the Inquiry proceed ings, as available with the Punjab Government, was scrutinised by a Deputy Secretary in the presence of Mr. D. M. Awan, the learned counsel for the petitioner, and the only statements found on the record were one oral statement of Ahmad Raza Kasuri recorded by the Tribunal, one written statement filed in the first instance, and another supplementary written statement, in all of which Ahmad Raza Kasuri had blamed petitioner Zulfiqar Ali Bhutto for the attack on his car, and had, in fact, gone to the extent of asserting that he did not expect to get justice as long as Zulfiqar Ali Bhutto was in power. It was on the basis of this scrutiny of the record of the Tribu nal that the High Court had recorded the conclusion that Ahmad Raza Kasuri had not made the kind of statement referred to in paragraph 15 of the Report of the Tribunal. All these matters are fully described in paragraph 491 of the majority judgment, and it is also stated that; "in order to satisfy ourselves further the record of the Tribunal was scrutinised, in the presence of the counsel for both sides by our learned brother Muhammad Haleem, J. and there was no indication at all of the presence of any such statement on the record, nor was there any suspicion that such statement had been removed after the Tribunal had concluded its proceedings. Mr. Batalvi also seems to be right in submitting that a perusal of paragraph 14 of the Report shows that Ahmad Raza Kasuri had made only one oral statement and two written statements as mentioned in the preceding paragraphs. Such being the case, the contents of paragraph 15 of Mr. Justice Shafi‑ur Rehman Report cannot be treated to be secondary evidence of the disputed statement of Ahmad Raza Kasuri, as no such statement appears to have been made at all by him during the Inquiry pro ceedings."

104. It will be seen that the factual aspect of the matter was fully investigated both in the High Court and in this Court during the hearing of the appeal and it was only thereafter that a finding was recorded that para graph 15 of the Report could not be used as secondary evidence of a statement that had not been made. In the circumstances there is no justification for reviewing this part of the judgment.

105. As to the alleged contradiction between the observations contained in paragraph 487 of the judgment and paragraph 491, to which reference has just been made, it has only to be stated that this is based on a misconcep tion. Paragraph 4137 of the judgment does not deal with paragraph 15 of Shafi‑ur‑Rabman Report, nor with the statement alleged to have been made by Ahmad Raza Kasuri before the Tribunal; on the contrary it deals with a different matter altogether, namely, the statement attributed to Ahmad Raza Kasuri during the investigation of the Islamabad incident by D. S. P. Agha Muhammad Safdar, and the question dealt with in paragraph 487 is as to whether this statement could have been proved at the trial by another officer by the name of Nasir Nawaz. It is, accordingly, a misconception to talk of inconsistency or contradiction between paragraphs 487 and 491 of the majority judgment.

106. Mr. Yahya Bakhtiar has next taken exception to the observations contained in paragraph 607 of the majority judgment to the effect that "once it became known that automatic weapons had been used, and even the Tribunal had indicated that the perpetrators of the crime were well‑equipped and well‑organised, the investigation ought to have travelled in the direction of the Federal Security Force and other units using this kind of ammunition, but no such effort was made". He contends that these observations are not supported by any evidence, and are, in fact, contrary to, the contents of the letter Exh. P. W. 35/4 sent by the Inspector‑General of Police, Punjab dated 2y‑9‑1975 to the Home Secretary stating that "the Deputy Inspector‑General of Police, Lahore District, has reported that the investiga tion of the case F. I. R. No. 402, dated 11‑I1‑1974, under section 302, P. P. C. P. S. Ichhra, on the points raised by the Tribunal has been completed. Despite best efforts, it has not been possible to trace out the culprits and further there is no such hope".

107. He further submits that there was no evidence that the Deputy Inspector‑General of Police, who had sent this report to the Inspector General of Police, had been subjected to any pressure in this matter; on the contrary the former D. I: G. Muhammad Abdul Vakil Khan (P. W. 14) had said that he did not give any direction to the Investigating Officer to join the Federal Security Force in the investigation.

108. It is true that in the letter written by the Inspector‑General of Police to the Home Secretary to the Punjab Government on the 27th September 1975, it is, indeed, mentioned that the investigation on the points raised by the Tribunal had been completed and yet the culprits could not be traced, but the question is whether this statement was conclusive on the point. It is obvious that such a bald statement, unsupported by the record of the investigation, could not prevail as against the testimony of D. I.‑G. Muhammad Abdul Vakil Khan, S. S. P. Muhammad Asghar and D. S. P. Muhammad Waris. It is no body's case that any officer of the Federal Security Force, or any other unit using ammunition of the kind found at the spot, was ever interrogated before it was decided to file the case as untraced. It is, therefore, idle to contend that the conclusions expressed in the majority judgment are not supported by evidence. In fact, this subject is also dealt with in paragraph 594 of the majority judgment, in which it has been clearly brought out that the local Investigating Officers were taking instructions directly from Saeed Ahmad Khan and the late Abdul Hamid Bajwa of the Prime Minister's Secretariat, and that these two officers had taken various steps with a view to ensuring that the investigation did not connect the Federal Security Force, or the then Prime Minister with this incident. This particular submission of Mr. Yahya Bakhtiar has, accordingly, no merit and is repelled.

109. Mr. Yahya Bakhtiar has also criticised the conclusions reached in the majority Judgment as to the credibility and effect of the evidence of M. R. Welch, Director of the Federal Security Force at Quetta. He contends that his oral testimony as well as the documents proved by him do not corroborate Masood Mahmood, as the Court has itself observed that from the remarks made by Masood Mahmood to Welch it could not be inferred that Masood Mahmood was acting under the express orders of the Prime Minister. Mr. Yahya Bakhtiar submits that in the circumstances the Court should have held that the testimony of Welch did not connect the petitioner with the conspiracy, and, accordingly, there was no corrobora tion of the approver's statement in this behalf. The learned counsel further submits that the routine reports submitted by Welch regarding the stay of Ahmad Raza Kasuri in Quetta have been misconstrued, as the reports did not relate solely to Ahmad Raza Kasuri, but, in fact, covered the activities of the other leaders of the Tehrik‑e‑Istaqlal as well; that his reports were based on secure reports and could not, therefore, be relied upon in the absence of proof of their contents by the source who had rendered the reports; that the Court has also gone wrong in thinking that there were no contradictions and improvements in error in the evidence of M. R. Welch; and similarly the Court has fallen in not treating M. R. Welch as an accomplice, and also in not giving weight to the fact that he had lied as to his religion while giving evidence at the trial; and that he was giving evidence under the pressure of Martial Law authorities, as he had also been indulging in illegal activities as a Director of the Federal Security Force.

110. After giving my anxious consideration to the submissions made by Mr. Yahya Bakhtiar in regard to the testimony of M. R. Welch, and perusing the detailed grounds mentioned in this behalf in the two volumes of the Review Petition (namely, grounds Nos. 19 and 20 on pages 73‑74 and grounds Nos. 26 to 32 on pages 139 to 146), I am of the view that these submissions are in the nature of an attempt to re‑argue the whole matter in regard to the weight to be attached to the testimony of M. R. Welch, and as to the inferences to be drawn from his evidence read along with the relevant documents. In the majority judgment the evidence of Welch, and Mr. Yahya Bakhtiar's criticism in regard thereto, precisely on the lines now advanced before us have been dealt with from paragraphs 513 to

535. All the points now urged have been considered in the majority judgment and repelled for reasons given therein. It is correct that it has been observed that from the directions given by Masood Mahmood to M. R. Welch during his stay at Quetta it could not be inferred that Masood Mahmood was doing so under the orders of the Prime Minister, but these directions did not stand alone. Masood Mahmood had deposed to having an audience with the Prime Minister at Quetta before leaving for Rawalpindi and M. R. Welch had deposed that the directions were given to him immediately before Masood Mahmood's departure from Quetta. From these circumstances taken together, read in the light of the documents contemporaneously prepared by M. R. Welch during Ahmad Raza Kasuri's visit to Quetta in September 1974, the majority judgment has come to the conclusion that this evidence lent corroboration to the testimony of Masood Mahmood both as to the existence of the conspiracy, and the connection of the petitioner with it. In review proceedings the correctness of inferences drawn from consideration of all the evidence and circumstances having a bearing on the matter cannot be allowed to be assailed, as a review is neither in. the nature of an appeal nor a rehearing of the case. In the circumstances Mr. Yahya Bakhtiar's criticism of the majority judgment in regard to the weight and effect of the evidence of M. R. Welch is not such as to justify a review thereof.

111. Mr. Yahya Bakhtiar next contended that the majority judgment had fallen into serious error in placing reliance on the testimony of approver Masood Mabmood (P. W. 2), and that conclusions had been reached in this matter as a result of misreading of the evidence of driver Manzoor Hussain (P. W. 21), by placing reliance on fabricated documents like tour details contained in Exh. P. W. 5/1, and also by ignoring his evidence regarding his hunch about the Islamabad incident, and the lack of corroboration in respect of the circumstances of his appointment as Director- General of the Federal Security Force, besides the erroneous assumption that being an official of high status he was expected to speak the truth. The learned counsel further contended that Masood Mahmood's evidence as to his meeting with the Prime Minister and Mian Muhammad Abbas at Rawalpindi on the 11th of November 1974, and his account of his conversation with the Prime Minister at that meeting were also false; and that in any case, he did not tell Mian Muhammad Abbas on that occasion to stop chasing Ahmad Raza Kasuri. Mr. Yahya Bakhtiar further submitted that Masood Mahmood had a motive to give false evidence against Mian Muhammad Abbas as the latter had already implicated him in illegal activities of the Federal Security Force while making a statement before an Inquiry officer, on 21st of July 1976,' and; therefore the majority judgment was erroneous in thinking that Masood Mahmood had no motive to falsely implicate Mian Muhammad Abbas.

112. I find that the majority judgment has attempted a detailed appraisal of Masood Mahmood's evidence in paragraphs Nos. 425 to 456, and the matters now raised have been noticed in one context or the other. However, a few words might be said on the specific points mentioned by Mr. Yahya Bakhtiar as grounds for reviewing the majority conclusion that Masood Mahmood's evidence was not such as could be said to be lacking in intrinsic worth by reason of any inherent weakness or infirmity; and that it could be safely acted upon provided the requisite corroboration was available on the record.

113. Taking first the question of Masood Mahmood's appointment as Director‑General of the Federal Security Force, the objection of the learned counsel is that the finding, in paragraph No. 438 of the judgment, that the Prime Minister's Chief Security Officer or his Assistant Abdul Hamid Bajwa might have played a role in advising the Prime Minister on Masood Mahmood's suitability is based on speculation as Saeed Ahmad Khan has not said anything on this point. This contention is misconceived for the reason that the question posed in paragraph 438 of the majority judgment was whether Masood Mahmood's account of the circumstances in which he came to be appointed as Director‑General of the Federal Security Force was unnatural and improbable; the question at this stage was not whether it stood corroborated by other evidence on the record or whether Saeed Ahmad Khan and Abdul Hamid Bajwa had, indeed been deputed by the Prime Minister to pressurise Masood Mahmood into accepting the appointment. It was in that context that the statement made by Masood Mahmood was examined so as to ascertain whether he satisfied the first test applicable to an approver's evidence, and the conclu sion reached in paragraph 438 was that it was not possible to agree with Mr. Yahya Bakhtiar that the account given by Masood Mahmood in this behalf must be rejected as false and fanciful. It is, therefore, incorrect to say that in not rejecting this part of Masood Mahmood's testimony the Court has given any benefit of doubt to the prosecution. No such question arose at this stage.

114. The next submission that Masood Mahmood had a motive to falsely implicate Mian Muhammad Abbas on account of the incriminating statement made by the latter before an Inquiry Officer does not find any reflection in paragraph 435 of the Judgment, overlooks the fact that there was no material at all on the record to show that this statement had ever been brought to the knowledge of Masood Mahmood before he made his confessional statement or approver's statement under section 164 of the Criminal Procedure Code. Precisely this argument was raised in the High Court and was repelled in paragraphs 447 and 448 of the judgment of that Court. It was not raised in this manner during the course of the' hearing of the appeal, and, accordingly, its omission from paragraph 435 of the judgment is of no consequence whatsoever. The conclusion reached in the majority judgment that Masood Mahmood had no motive to falsely implicate Mian Muhammad Abbas remains unaffected.

115. In this connection, Mr. Yahya Bakhtiar's next submission was that the conclusion reached in paragraph 437 of the majority judgment regarding his contention that the prosecution had assigned to Masood Mahmood a role without a role, was not correct and needed to be reviewed, as the Court had not properly appreciated his submissions with regard to the part assigned by Masood Mahmood to Mien Muhammad Abbas, nor had the Court drawn proper inferences from the evidence of M. R. Welch regarding the directions given to him by Masood Mahmood at Quetta to take care of Ahmad Raza Kasuri. From a perusal of the relevant ground, namely, ground 18 on pages 125 to 127 of the Review Petition, and a con sideration of the oral submissions made by Mr. Yahya Bakhtiar in this behalf, I am left in no doubt that he is merely attempting to reargue this point; which is not permitted in review. 116. " Mr. Yahya Bakhtiar also submitted that the statement made at the trial by Masood Mahmood regarding his hunch about the Islamabad incident of the 24th of August 1974, was not consistent with the conduct of a con spirator ; and that, in any case, he had made an improvement during the course of giving evidence by asserting that after this incident the petitioner had told him that nothing had been accomplished, and that as a result Masood Mahmood gave further directions to Mian Muhammad Abbas. In this connection the learned counsel also referred to another statement made by Masood Mahmood that after the Lahore incident resulting in the present murder, Mian Muhammad Abbas had told him that the mission could not be accomplished in Islamabad. The object of these submissions was to show that the various omissions, contradictions and improvements of Masood Mahmood had not been given due weight, and it had been incorrectly stated at item 11 of paragraph 455 of the majority judgment that this information bad been elicited from Masood Mahmood in cross‑examination. Mr. Yahya Bakhtiar submitted that this information was, in fact, volunteered by Masood Mahmood.

117. I find that a large number of alleged omissions, contradictions and improvements attributed to Masood Mahmood have been discussed in para graph 455 of the judgment, and it is no ground for review that a certain view as to these contentions has been expressed, which the learned counsel thinks is not correct. A reference to the record of Masood Mahmood's evidence shows that the information about the talk with Mian Muhammad Abbas was given by Masood Mahmood during the course of cross‑examination, whether voluntarily or otherwise, and he also offered an explanation as to why he had not mentioned the same in his previous statements. The Court has accepted that version, and it is not a ground for review to say that it should not have been so accepted.

118. Mr. Yahya Bakhtiar further contended that the observation appear ing in paragraph 568 of the judgment to the effect that Masood Mahmood's driver Manzoor Hussain had stated that he did not remember as to where he had taken the Director‑General on the morning of the 11th of November, 1974, during his stay in Multan, before taking him to the airport, was not correct, as Manzoor Hussain had made that statement only with regard to the 10th of November 1974, and as regards the 11th of November he had stated that "so far I know D. G. had not visited anyplace in Multan on the morning of 11th November 1974. I drove the D: G. to the airport from the Canal Rest House on the 11th of November, 1974", and that the keys of the car remained with him. The submission is that on account of this misreading of the evidence of driver Manzoor Hussain an incorrect conclusion has been drawn as regards Masood Mahmood's visit to the petitioner on the morning of the 11th November 1974, at the house of Mr. Sadiq Hussain Qureshi, the then Governor of the Punjab.

119. The submission is untenable as the relevant portion of the evidence of driver Manzoor Hussain is fully and correctly reproduced in paragraph 567 of the judgment, and although an inaccuracy has crept into the para phrasing of this evidence in the opening sentence of paragraph 568 of the judgment, yet in the body of the paragraph detailed reasons are given for reaching the conclusion that the replies given by Manzoor Hussain driver could not be considered as indicating that Masood Mahmood did not stir out from the Rest House at all before leaving for the airport on that morning. It is further stated in that paragraph "it is significant that Masood Mahmood was not questioned on this point at all, and for a very good reason, namely, that before departing from Multan it would have been the obvious thing for Masood Mahmood to pay a call on the Prime Minister and specially, as already stated above, when the news of a very important tragic event had reached Multan". In the presence of these detailed reasons, nothing turns on the slight inaccuracy noticed by Mr. Yahya Bakhtiar in the opening sentence of paragraph. 568 of the majority judgment. .

120. Still another submission made by Mr. Yahya Bakhtiar in regard to the evidence of Masood MahmocA is that the Court has incorrectly disposed of his contention regarding the improbability of a meeting between Mian Muhammad Abbas and Masood Mahmood at Rawalpindi on the 11th of November 1974, as on that date Mian Muhammad Abbas was at Peshawar and returned to Rawalpindi only on the 12th of November 1974. The sub mission of the learned counsel has been fully dealt with in item 3 of paragraph 455 of the judgment, and nothing is to be gained by covering the same ground again, as the mere contention that' an incorrect inference has been drawn is not a valid ground for review.

121. Still another submission against accepting the evidence of Masood Mahmood is that in paragraph 512 of the judgment the Court has accepted the tour details contained in document Exh. P. W. 5/1 as correct, whereas, in fact, this document was a forgery. A reference to the relevant paragraph shows that Mr. Yahya Bakhtiar's contention in this behalf has been fully dealt with and repelled for reasons given therein. A review petition cannot be used as a pretext for re‑arguing the point.

122. Yet another point sought to be made by the learned counsel is that the observation of the Court in paragraph 435 is contrary to the dictum of this Court in Abdul Qadir v. The State (P L .D 1956 S' C (Pak.) 407,), in which it was observed that standard of corroborative evidence is not to be varied in case of an approver of education and apparent respectability if he is no better than a hired assassin.

123. The contention is entirely misconceived, as paragraph 435 deals with a number of matters having a bearing on the question of the intrinsic worth of Masood Mahmood's evidence and not with the question of corroboration thereof, which question is discussed much later in the judgment. The con elusion expressed in this paragraph doe .not rest only on the fact that Masood Mahmood was a high ranking official, but on a consideration of all the relevant facts brought out in the evidence, as would be clear from the opening sentence of this paragraph, namely, "considering the fact that Masood Mahmood enjoyed a special position under Zulfiqar Ali Bhutto, that he was in close and constant touch with him throughout his tenure as Director -General of the Federal Security Force from 1974 to 1977, that he was shown all kinds of favours and considerations by being seat abroad for official visits and medical treatment, that he was not the only civilian official taken into custody on the proclamation of Martial Law, and that during his long career in the police service of Pakistan he had held important positions involving assumption of responsibility and exercise of authority. I find it difficult to hold that Masood Mahmood has become an instrument in the hands of the Martial Law Authorities to deliberately and falsely concoct the story he has narrated at such length at the trial".

124. While finding that none of the submissions made by Mr. Yahya Bakhtiar regarding the conclusions reached in the majority judgment as to the acceptability of Masood Mabmood's evidence, provides any justification for review, it will not be out of place to state that as the evidence of Masood Mahmood was an extremely important part of the prosecution case, the fullest consideration was given to all the circumstances having a bearing on the question of his credibility and corroboration. The conclusions were reached on the totality of the evidence available on the record, and they are not open to review on the ground that another view of the matter was also possible.

125. Taking next the finding in the majority Judgment as to the presence of motive on the part of the petitioner, Mr. Yahya Bakhtiar submitted that the majority Judgment had misread the First Information Report as indicating that the motive lay only with the petitioner to the exclusion of other political enemies of the complainant ; that it had also erroneously presumed that no other motive was proved on the record and other motives stood excluded ; that the fact of Ahmad Raza Kasuri rejoining the Pakistan People's Party after the murder of his father, and his expressing admiration for the petitioner had also been ignored ; and it had been overlooked that as Ahmad Raza Kasuri was criticising and attacking the formation and performance of the Federal Security Force, therefore, Masood Mahmood and the petitioner's co‑accused Mian Muhammad Abbas' might have had a motive of their own to finish him.

126. Here again, it is plain that the submissions made by Mr. Yahya Bakhtiar do not fall within the ambit of the scope of review in criminal cases. During the hearing of the appeal all the evidence having a bearing on this point was read and analysed by Mr. Yahya Bakhtiar at length. The previous incidents narrated by Ahmad Raza kaauri and all other possible motives inviting physical assault on him were also discussed The various speeches made by Ahmad Raza Kasuri in and outside Parliament were read before the Court, and the relevant extracts have been included in the Judgment. The discussion of motive in the majority Judgment occupied considerable space from paragraphs 458 to 497, and before reaching positive conclusions on the question of motive, the various points now urged by Mr. Yahya Bakhtiar were all duly considered, except the suggestion mad for the first time that petitioner's co‑accused Mian Muhammad Abba might have had a motive of his own to finish Ahmad Raza Kasuri for the reason that he had criticised in Parliament the formation and functioning of the Federal Security Force. Apart from the fact that this point was riot agitated during the bearing of the appeal, I find that there is, in fact, no support for the assertion that Mian Muhammad Abbas might have had motive of his own to get Ahmad Raza Kasuri assassinated. As a result I have no hesitation in holding that Mr. Yahya Bakhtiar's submissions as to motive do not justify any review of the majority Judgment.

127. The learned counsel has next argued that this Court in its majority Judgment has grievously erred in the application of section 10 of the Evidence Act to the facts of this, case and. has thereby relied on inadmissible evidence used against the petitioner, both for the purposes of proving, the existence of the alleged conspiracy and that he was also its member along with the other co‑accused and the two approvers. In this connection before us at the hearing the learned counsel for the petitioner did not find fault with the interpretation placed on section 10 of the Evidence Act in paragraphs 83 to 115 of the majority Judgment. His objection was, however, confined against the conclusions recorded in paragraphs 116 to 119 of the Judgment in the application of this section to the facts of the present case.

128. In this connection to be precise the learned counsel submitted that for the purposes of section 10 of the Evidence Act the prosecution had altogether failed to adduce any reliable independent evidence to establish the existence of the alleged conspiracy and that in the majority Judgment reliance has been placed on inadmissible evidence in finding that there was reasonable ground to believe that the petitioner had conspired together with the others to commit the offence. In this behalf it was absolutely necessary for the prosecution to have adduced sufficient independent evidence to enable the Court to form a prima facie opinion about the existence of conspiracy as a condition precedent to the application of this section. In nut‑shell, according to the learned counsel, this Court, in its majority judgment, has erred in law in relying on the evidence of Masood Mahmood approver, which was inadmissible for the purpose of section 10 of the Act for furnishing any ground in forming a reasonable belief as to the existence of the conspiracy between him and the petitioner as a condition precedent, before anything said, done or written by any one who had .thus conspired, in reference to their common intention, after the time when such intention was first entertained by any one of them, could be used as a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that such person was a party to it. It was further submitted before us that in this connection we have also erred in relying on the other evidence consisting of the statements of Ahmad Raza Kasuri (P. W. 1), Saeed Ahmad Khan (P. W. 3), M. R. Welch (P. W: 4), Fazal Ali (P. W. 24), Amir Badshah (P. W. 20) and Muhammad Amir (P. W. 19), which did not even remotely go to suggest about the existence of the alleged conspiracy between the petitioner and Masood Mahmood approver.

129. It will be seen that the contentions now raised do not fall within the definition of an error patent on the face of the record. These points were argued at great length by both sides, and the majority Judgment has given a certain interpretation of the law, which is not liable to be interfered with byway of review.

130. Even otherwise, we find that this objection is based .on a mis conception of the true legal position as to the use of these pieces of evidence to open the door for the application of section 10 of the Evidence Act. It goes without saying that under this section on the principle of agency, each conspirator is liable for anything said, done or written by every other conspirator in reference to the conspiracy. This is a special provision which comes into play and can be invoked only after the Court has found from the evidence aliened on the record that there was reasonable ground to believe about the existence of the alleged antecedent conspiracy. But in this behalf it must be borne in mind that this section does not in any manner exclude the application of any of the other relevant provisions of the Act for the purpose. Therefore, in order to fulfil this initial requirement of the section with a view to enable the Court to form its prima facie opinion in that behalf, recourse can be had to the evidence which was otherwise admissible in accordance with any of the other provisions of the Act. It cannot be doubted that the approver is a competent witness against the accused in accordance with the provisions contained in section 133 and section 114 (Illustration (b)) of the Evidence Act. Therefore, there cannot be any bar in relying on the evidence of the approver as well as on the other relevant evidence admitted on the record in order .to enable the Court to form its prima facie opinion about the alleged conspiracy with a view to fulfilling the initial requirement before invoking the provisions contained in section 10 of the Act.

131. We find that in the Special Bench case of Jitendra Math Gupta and others v. Emperor (A I R 1937 Cal. 99) a similar objection had been raised and adequately refuted. In that case the appellants, 29 persons, were tried by the Special Tribunal constituted by the Government of Bengal under the Bengal Criminal Law Amendment Act on a charge of conspiracy under section 121‑A, I . P. C. According to the prosecution accused persons along with Jiten Naha (an approver examined as a witness for the prosecution) and some other persons were parties to the criminal conspiracy to wage war against the King --Emperor. In that case the Court observed that there cannot be strictly speaking direct evidence of the inception of a conspiracy, if any of the conspirators themselves do not choose to speak to the same. That a conspiracy, as contemplated by section 121‑A, I. P. C. d d exist and the persons placed on trial were members of the conspiracy was sought to be established by the evidence falling under different heads ; in the first place there was the evidence of the approvers or accomplices, then there was the confessional statements of the accused persons in addition to other evidence adduced on the record. In that connection the Court observed that the evidence of the existence of the conspiracy and of the participation of the accused persons in the same came from the approvers Jiten Naha and Hrishiltesh Gupta ; there were then the witnesses coming within the category of accomplices or persons in the position of accomplices ; and there were also the confessions‑so‑called confessional statements by some of the accused persons ; of these confessional statements, two stood out prominently, others were of a self‑exculpatory nature, and their evidentiary value as statements of accused persons was negligible. In connection with the provisions of section 10 of the Evidence Act, the Court observed that;

"The prosecution examined two persons who turned approvers, and there was evidence coming from independent sources or from accomplices or persons in the position of accomplices

as they are sometimes denominated, to prove facts establishing that the accused persons were acting in pursuance of an agreement between two or more persons, leading to the inference that a conspiracy as contemplated by section 121‑A existed. The existence of a concerted intention was sought to be established as a matter of inference closely bound up with some overt act or acts, as if only by means of overt acts that the facts of the existence of the conspiracy would be established. The criminality of the conspiracy was, as it was well settled now, independent of the criminality of the overt acts. Direct evidence was given to prove the existence and the planning of a conspiracy as charged, but it was not necessary to establish by direct evidence that the accused persons did enter into an agreement to conspire."

132. In this connection in Corpus Juris Secundum, Vol. 22‑A, it is observed that (page 1137) the Courts generally require that there be prima facie proof of the existence of a conspiracy before admitting in evidence acts and declarations of an alleged co‑conspirator. Ordinarily (page 1133) the Courts permit considerable latitude in the proof of a conspiracy to commit a crime. Usually every transaction between the persons allegedly entering into the conspiracy is admissible to show the existence of the conspiracy or its furtherance, and generally speaking, any evidence which properly tends to show the existence of the conspiracy is admissible. A (page 1134) co‑conspirator may testify at the trial as to any fact within his own knowledge which tends to prove any issue of the case, and he may testify to any acts, statements, or circumstances within his knowledge which of themselves constitute or tend to establish a conspiracy, or from which its existence may be inferred, and he may do this the same as any other witness. There is (page 1127) no rule requiring the prosecution to establish a conspiracy in order to permit a witness to testify what one or all of several accused persons did and evidence adduced by coconspirators as witnesses, which is direct evidence of the facts to which they testify, is not within the rule requiring a conspiracy to be shown as a prerequisite to its admissibility. The rule that declarations of an alleged conspirator are admissible against an alleged co‑conspirator only if the existence of the conspiracy is established applies only where the declaration by the alleged conspirator is made to a third person, and positive testimony as to a conversation between accused and an accomplice relative to the crime, or the testimony of a third person who overheard such conversation, is not of the class of evidence requiring the establishment of a conspiracy to render it competent. Similarly, according to Corpus Juris Secundum, Vol. 15‑A, on page 902, a conspirator is an accomplice and, although uncorroborated, is always a competent witness. Independent proof of the conspiracy is not a prerequisite to the admissibility of the testimony of a conspirator implicating defendant. In this connection Roscoe on Criminal Evidence, 16th Edition, page 485 has observed:‑

"And this must, generally speaking, be done by evidence of the party's own act, and cannot be collected from the acts of others, independent of his own, as by express evidence of the fact of a previous con spiracy together, or of a concurrent knowledge and approbation of each other's acts. But it may also be done by 'evidence of the acts of the prisoner, and of any other with whom he is attempted to be so connected, concurring together at the same time and to the same purpose or particular object': P. C. 96." It cannot, therefore, be held that the approver is not a competent witness to directly depose to the existence of the conspiracy of which the petitioner was a member. But it goes without saying that such evidence will be accepted by the Court with caution in accordance with the established principles. The agreement to conspire was also inferred from circumstances discussed in the majority Judgment which gave rise to a strong inference of a concerted plan to carry out the unlawful design. There does not appear to be any error patent on the record in the application of the provisions of section 10 of the Evidence Act to the facts of this case. There is no force in this objection and the majority Judgment is not liable to review on this ground.

133. We may now turn to the contention that the majority judgment also suffers from an error apparent on the face of the record as it has been used, in support of the petitioner's conviction, facts elicited by the learned counsel for the confessing accused in cross‑examination illegally permitted to him by the High Court after the counsel for the petitioner and for the other contesting accused Mian Muhammad Abbas had concluded their cross‑examination, with the consequence that certain incriminating facts damaging to the petitioner, were brought on the record without the petitioners having an opportunity to rebut them.

134. This point has been noticed in paragraphs 893 and 894 of the judgment of the majority while dealing with the question of bias as follows:

"

893. At times Mr. Irshad Ahmad Qureshi, Advocate, learned counsel for the confessing accused, was illegally permitted to cross‑examine the prosecution witnesses for the second time on behalf of Ghulam Mustafa accused, after they had already been cross‑examined on behalf of the appellant, at his cost and disadvantage thereby prejudicing his defence." "

894. It appears to me that in the circumstances of this case, the Court had erred in allowing Mr. Irshad Ahmad Qureshi, Advocate to cross‑examine the prosecution witnesses for the second time on behalf of Ghulam Mustafa as stated above." The conclusion recorded, however, was as follows:

"But from this it cannot be concluded that the Court was at all prejudiced against the appellant."

135. The plea that Mr. Irshad Ahmad Qureshi should not have been allowed to cross‑examine the witnesses after they had been cross‑examined by the petitioner was raised during the appeal proceedings to show that the Court was biased against the petitioner. This plea was overruled by the Court. Now Mr. Yahya Bakhtiar has stressed another aspect of the same plea, namely, that the replies elicited by Mr. Irshad Qureshi by his cross‑examination for the second time, were illegally brought on the record, and being damaging to the petitioner, should have been excluded.

136. In this connection rte only instance brought to our attention in the course of hearing of the present Review Petition was the proceedings which took place before the trial Bench on 15‑1‑1978 (reproduced at page 650 Vol. of Evidence) during the recording of evidence of Abdul Hayee Niazi (P. W. 34). This is reproduced below; (Note.‑Mr. Qurban Sadiq Ikram wants permission to put a question to the witness by way of cross‑examination because he says that Mr. Irshad Qureshi has, by his cross‑examination, damaged the case of Mr. Qurban Sadiq Ikram's client. Let the question be taken down to enable us to take a decision on this point: Question.‑Is it a fact that after the Court proceedings yesterday, you were briefed by Mr. A. Khaliq, Deputy Director, F. I. A. to make a statement in this Court what you have stated in answer to the question put by Mr. Irshad Qureshi. Order.‑This question could have, very well, been asked at the time when Mr. Qurban Sadiq Ikram was cross‑examining the witness this morning because as the question shows the allegation is that the officer of the F. I. A. briefed the witness yesterday. The question is, therefore, disallowed).

137. The above instance was noticed in the majority Judgment in paragraph 908, and it was observed:‑

"The Court rightly did not allow the permission to Mr. Qurban Sadiq Ikram to put further questions to (P. W. 34) Abdul Hayee Niazi after he bad already cross‑examined him and the objection raised has no force."

138. Apart from this instance, no other example was given of any incriminating facts, damaging to the petitioner, having been brought on the record on account of the opportunity granted to Mr. Irshad Qureshi to cross‑examine a witness, once on behalf of two of the confessing accused and, then later, on behalf of the third confessing co‑accused, after they had already been cross‑examined on behalf of the petitioner.

139. The above instance does not advance the case of the petitioner. It pertains to the tampering of a witness which was allegedly attempted a day earlier to the cross‑examination by Mr. Irshad Ahmad Qureshi for the second time and the question put, as rightly observed by the trial Bench, could have been asked earlier by Mr. Qurban Sadiq Ikram because the witness was still in his hands on the morning following the alleged attempt to tamper with him. Moreover, this objection was raised by Mr. Qurban Sadiq Ikram, Advocate on behalf of Mian Muhammad Abbas a who has not filed any Review Petition. We feel, therefore, that Mr. Yahya Bakhtiar is only making a , fetish of a procedural mistake which has no bearing on the fundamentals of the case nor has occasioned any prejudice to the petitioner.

140. Another ground urged in support of the Review Petition is that the majority Judgment suffers from a patent contradiction inasmuch as it has rejected the petitioner's application for summoning additional evidence, inter alia, on the ground that he was in law not permitted to boycott the proceedings of the trial in the High Court, and at the same time it has given legal recognition to the fact of boycott by holding that no prejudice had been caused to the petitioner by the failure of the High Court to put certain pieces of evidence to him under section 342 of the Criminal Procedure Code, as he had already boycotted the proceedings and refused to answer a large number of questions put to him by the High Court under this section of the Code. The submission appears to be that the view taken in the majority Judgment as to the effect of the failure of the High Court to put certain pieces of evidence to the petitioner under section 342 of the Criminal Procedure Code is not correct and needs to be reviewed.

141. The submission is altogether untenable, as, in fact, in both the matters, namely in rejecting the petitioner's application for summoning additional evidence, and in repelling the contention that he was prejudiced by the failure of the High Court to put certain pieces of evidence to him during his examination under section 342 of the Code of Criminal Procedure, the majority Judgment has taken a consistent view to the effect that the petitioner was himself to blame if he decided to boycott the proceedings of the trial in the High Court. He could have summoned defence witnesses during the trial, if he had not boycotted the proceedings; and he could have legitimately claimed that all incriminating pieces of evidence should have been put to him if he had decided to answer the questions put to him by the High Court and to explain the evidence brought on the record against him by the prosecution. But as he refused to answer questions having a bearing on his defence, the majority judgment has held that in these circumstances it could not be said that he had been prejudiced, as nothing would have been gained even if further questions had been put to him because he would have simply refused to reply.

142. While dealing with the question of the application of section 342 of the Criminal Procedure Code, the majority Judgment has observed in paragraph 163, that "although this section is a mandatory provision, yet its compliance is dependent upon the conduct of the accused himself. In the present case the accused frustrated these provisions by boycotting the proceedings and refusing to answer any questions put to him relating to his defence . . . . . . . In fact, in view of the conduct displayed by him, the Court would have been justified not to ask any further question."

143. This paragraph cannot be interpreted to mean that the Court is granting legal recognition to the act of an accused in boycotting the proceedings of the trial. On the contrary, the Court was concerned only with examining the effect of such an attitude on the part of the petitioner. It is, therefore, fallacious to contend that there is any contradiction in the majority Judgment on this point.

144. Still another ground urged by Mr. Yahya Bakhtiar for review of the majority Judgment is that while examining the question of the sub sequent conduct of the petitioner, and the evidence of Saeed Ahmad Khan having a bearing thereon, the majority Judgment has omitted to examine the effect of the note made by the petitioner on the letter of the Punjab Chief Minister, with which the Report of Shah‑ur‑Rehman's Inquiry Tribunal was enclosed to the effect "what was the point in discussing with you. Please discuss"; that, in fact, these remarks of the petitioner clearly showed that Saeed Ahmad Khan had been meddling with the investigation of the case without the petitioner's authority. In support of this submission Mr. Yabya Bakhtiar has referred us to paragraph 605 of the majority Judgment in which there is no direct reference to the aforesaid remarks of the petitioner.

145. The submission is clearly misconceived. The handling of the Shafi‑ur‑Rehman Inquiry Report has been described in paragraphs 586 to 592 of the majority Judgment. These paragraphs reproduce the relevant portions of the oral testimony of Saeed Ahmad Khan (P. W. 3), and also contain copious references to the documents proved by him in support of his oral statement. It is not necessary to recite all those details here, and it would suffice to say that Saeed Ahmad Khan had been dealing with the Shafi‑ur‑Rehman Report at several stages, and it was for this reason that the Chief Minister's letter to the petitioner, as Prime Minister of Pakistan, was marked by the petitioner to Saeed Ahmad Khan on the 18th of March, 1975, with the remarks quoted by Mr. Yahya Bakhtiar. Paragraph 591 of the majority Judgment states that "Saeed Ahmad Khan says that after receiving these directions, he discussed the matter with the Prime Minister and he was told that the Report shall not be published as it was adverse; and Saeed Ahmad Khan was further told by appellant Zulfiqar Ali Bhutto that he should have nothing to do with this case." It is, therefore, incorrect to suggest now that these particular remarks made by the petitioner on the forwarding letter of the Punjab Chief Minister were not present to the mind of the Court when conclusions were drawn as to the role played by Saeed Ahmad Khan in meddling with the investigation of the case, and the fact that he was doing so under instructions from the petitioner. In paragraph 604 of the majority judgment, it is stated that "from the facts relied upon by Mr. Yahya Bakhtiar, the impression clearly emerges that if Saeed Ahmad Khan overstepped his authority or interfered with matters not entrusted to him by his employer, then the latter was certainly capable of pulling him up".

146. This paragraph is then followed by paragraph 605 which reads as under;

"However, there is no such material on the record to show that appellant Zulfiqar Ali Bhutto, at any stage, pulled up Saeed Ahmad Khan for interfering with the investigation of this case, or putting up suggestions to him during the progress of the Inquiry before the Shafi‑ur‑Rehman Tribunal, nor did the Prime Minister object to Saeed Ahmad Khan discussing matters with the Chief' Minister and Chief Secretary and other officials of the Punjab Province. The documents already referred to in the preceding paragraphs leave no doubt whatsoever that Saeed Ahmad Khan was keeping the appellant fully in the picture as to the progress of his efforts. There is, therefore, no substance in the contention that all these steps were taken by Saeed Ahmad Khan, or his Assistant Abdul Hamid Bajwa, without the knowledge and authority of the appellant."

147. It will be seen that the conclusions as to the role played by Saeed Ahmad Khan in meddling with the investigation of the case have been drawn by the majority of the Judges after a full consideration of all relevant evidence having a bearing on the point, and it is no ground for review if the conclusion is not in accord with the point of view canvassed by Mr. Yahya Bakhtiar.

148. Mr. Yahya Bakhtiar next contended that the majority judgment had 'erred in coming to the conclusion that there was agreement on the part of Masood Mahmood within the meaning of the definition of the term conspiracy as contained in section 120‑A of the Pakistan Penal Code, and he further submitted that there was a contradiction between the observations as contained in paragraphs 7 6 and 774 of the judgment; and that there was also an inaccuracy in the statement contained in paragraph 774 that Masood Mahmood had asked Mian Muhammad Abbas to get on with the job after his meeting with the petitioner at which the conspiracy was alleged to have been hatched. He contended that in reaching this conclusion due weight had not been given to the fact that Masood Mahmood had been given orders by the petitioner and that he was also threatened in the sense that the petitioner was alleged to have asked Masood Mabmood whether he wanted to be chased again by the Establish ment Secretary Mr. Vaqar Ahmad; and that Masood Mahmood's subsequent conduct in regard to the Islamabad incident and his alleged directions‑to M. R. Welch at Quetta have also been misconstrued as indicating voluntary acquiescence on his part. In support of these submissions he referred to certain portions of the dissenting opinions delivered by our learned brothers Dorab Patel, J., and G. Safdar Shah, J., with whom Muhammad Haleem, J , had agreed, to show that there was no agreement on the part of‑‑Masood Mahmood.

149. The question whether there was, indeed, any agreement on the part of Masood Mahmood so‑as to constitute the offence of conspiracy, has been discussed at length in the majority judgment in paragraphs 765 to 777, and the final conclusion reached is based on an appraisal of the oral testimony of Masood Mahmood, and the circumstances showing his subsequent conduct in regard to the execution of the conspiracy. I have perused these paragraphs again, and I find that the submissions made b, Mr. Yahya Bakhtiar have been fully considered therein, and accordingly, no question arises of reviewing the inferences drawn from the facts found to have been proved, simply on the ground that three learned judges of this Court have taken a different view on the same facts. It is well established that the contention that inferences drawn from the evidence are incorrect is not a valid ground for review, as it would either amount to a rehearing of the case or an exercise in the nature of an appeal against the original judgment of the Court, matters which are not covered within the ambit of review. There is, accordingly, no merit in this submission.

150. I now turn to the contention that the majority judgment has not given effect to the submissions made on behalf of the petitioner as to the erroneous and illegal view taken by the trial Bench in the matter of contradictions and omissions occurring in the evidence of the prosecution witnesses when they took up the position that they did not remember whether they had stated certain things in their previous statements or not, with the result that the prejudice caused to the petitioner by the refusal of the High Court to allow cross‑examination in respect of these matters has not been considered by this Court.

151. This question has been dealt within the majority judgment in paragraphs 290 to 296 and after discussing the various aspects of the matter the law summed up on page 1523 of Monir's Law of Evidence was accepted as correct, namely, that :‑

"A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non‑existence of the fact. But it is wrong to suppose that all omissions are contradic tions. It must be left to the Court in each particular case to decide whether the omission in question amounts to a contradiction or not . . . . . An omission must be material. Thus where a prosecution witness deposes in Court that the accused gave blow on the head or implicates the accused in his deposition before the Court but did not mention such fact before the police, the omission would amount to contradiction . . . . ." . The correctness of the above summation of the law was not disputed by Mr. Yahya Bakhtiar but his contention is that this principle has not been observed in actual practice.

152. In this connection it may be pointed out that this objection has been raised without specification of instances. Neither in the petition for review nor in the arguments addressed in support thereof any particular instance was brought to our attention except for one, wherein the witness was sought to be confronted with his previous statement but the counsel was not allowed to cross‑examine him on the ground that since he had said that he did not remember, therefore, he could not be cross‑examined on the point. This instance finds mention in the order of the trial Bench dated 30‑I1‑1977 (page 35 of Volume II of Orders) passed during the evidence of Muhammad Waris P. W. 15 and also referred to in the application of Zulfiqar Ali Bhutto dated 18‑12‑1977 at page 185 of the Chart relating to the bias of the trial Court. The said order is in the following terms :‑

"During the cross‑examination of P. W. 15, an effort was made to confront the witness with his statements under sections 161 and 164, Cr. P. C.. when he said that he did not remember, whether he had or had not deposed to a particular point. It was not allowed as we have held already that failure to remember does not amount to a contradiction."

153. The above instance, however, does not materially advance the case of the petitioner. It does not show as to what answer was given by the witness at the trial and as to what was the previous statement of the witness on the subject. It is not, therefore, possible to say as to whether the answer that "I do not remember" did indeed amount to contradiction in the light of the principles governing the matter as summed up by Monir and approved by us. . It was submitted in this connection that the learned trial Bench did not allow the defence counsel to bring the questions and objections on the record. But as observed in paragraph 894 of the judgment;

" . However, one thing is certain that in this behalf the defence had all along failed to adhere to the usual practice by reducing the objections into writing in the form of applications filed in the face of the Court for its order. This would have been helpful in keeping the record straight."

154. Mr. Yahya Bakhtiar also argued that prejudice was caused to the defence because the effect of lapses of memory has not been examined by the majority judgment. This objection, it appears to us, is more academic than real. It is relevant to mention here that the learned counsel for the petitioner submitted three applications in this Court (Criminal Miscellaneous Nos. 7, 8 and 9 of 1978) for additional evidence. In the firs application a prayer was made for resummoning M. R. Welch P. W. so that he could be questioned in respect of his religion and with regard to some other matters which could not be taken up in cross‑examination owing to the petitioner's absence from the Court on the date he was examined. The second application contained a request for resummoning D. S. P. Agha Muhammad Safdar and Col. Wazir Muhammad of the Centre Ordnance Depot, Kharian, as Court witnesses. In the third application a prayer was made for summoning 10 defence witnesses including Gen. Tikka Khan, Mr. Aziz Ahmad, Rao Abdur Rashid and certain officials o E the Press Information Department and of the C. M. L. A. Secretariat. However, the prosecution witnesses who gave answers to the effect "I do not remember" were the following :‑'

P. W. 1 Ahmad Raza Kasuri. P. W. 11 Abdul Aziz. P. W. 12 Asghar Khan P. W. 14 Muhammad Abdul Vakil Khan. _. 7 P. W. 15 Muhammad Wards. P. W. 18 Abul Ikram. P. W. 19 Muhammad Amir. P. W. 20 Amir Badshah Khan, and P. W. 31 Ghulam Hussain approver. (Vide Chart supplied by Mr. Batalvi on the point), but no application was made for resummoning any of the aforementioned 9 witnesses, with a view to confronting them with their previous statements. It is manifest, therefore, that no prejudice was, in point of fact, caused by not allowing these witnesses to be confronted with their previous statements, and the objection raised appears to have been raised only for the sake of an objection. The omission pointed out by the learned counsel is of no consequence. 155' Mr. Yahya Bakhtiar further contended that the conclusions reached in the majority judgment, as to the effect of non‑examination of certain material witnesses were also not correct, and in support of this submission be reiterated the arguments which he had advanced at the nearing of the main appeal, The learned counsel made particular mention of the two recovery witnesses, of Irfan Malhi, who was a Director of the Federal Security Force at Lahore and was supposed to have been contacted by D. I.‑G. Muhammad . Abdul Vakil Khan; AND ALSO OF Mr. Hanif Ramay, Head Constable Muhammad Yousaf and Agha Safdar, and submitted that the second part of section 540 of the Criminal Procedure Code had not been properly adverted to in the majority judgment, as this part makes it obligatory on the Court to summon all witnesses whose evidence is material for the unfolding of the case, and that it was not good law to lay down that the ipsi dixit of the prosecutor that a witness had been" won over should be regarded as sufficient.

156. The subject of the non‑production of certain witnesses by the prosecution at the trial of the case has been exhaustively dealt with‑ in the majority judgment in paragraphs 309 to

339. Not only the legal position obtaining in this behalf, but also the factual position in respect of each of the witnesses in question has been considered at length. If the conclusions arrived at are contrary to the submissions made by Mr. Yahya Bakhtiar, that does not provide any justification for review. There is no question of the Court not baying considered the implications of the second part of section 540 of the Criminal Procedure Code, as the power and duty of the Court to summon witnesses is not in dispute. If the prosecution does not regard certain witnesses as material for the unfolding of the case, and for that reason abandons them, the Court would certainly be in duty bound to call them if it regards their, evidence as essential for the, just decision of the case. But no such opinion was formed by the High Court, and the majority judgment also has not taken this view. In the circumstances, I am not persuaded that these submissions, in any manner, justify a review of this part of the majority judgment.

157. Another submission made by Mr. Yahya Bakhtiar was that the majority judgment had also erred in disallowing an application made by the petitioner for summoning certain witnesses in his defence for the reason that he did not have an adequate opportunity of doing so in the trial Court, as he had boycotted the proceedings before the conclusion of the prosecution case. Our reasons for dismissing this application (Criminal Miscellaneous No. 9 of 1978), as contained in paragraph 50 of the judgment, have taken due note of this argument, and the submissions now made by Mr. Yabya Bakhtiar only seek a reopening of this question, which is not permissible in review.

158. We now take up the contentions that the majority judgment is in error in holding that section 111 of the P. P. C. was applicable to the case of the petitioner, as there was no evidence on the record to show that the death of Nawab Muhammad Ahmad Khan, deceased, was a probable consequence of the alleged conspiracy; that a conviction under this section could not be recorded without there being a separate charge as the case was not covered by section 237 of the Criminal Procedure Code read with section 236 thereof; and that, in any case, there is also an error in the applica tion of section 109 of the P. P. C. in addition to section 111 thereof as both the sections are mutually exclusive.

159. Mr. Yahya Bakhtiar further submitted that there was no evidence to show that the petitioner knew that automatic weapons would be used; that moreover the use of automatic weapons did not automatically lead to the application of section 111, P. P. C.; that, in fact, approver Ghulam Hussain had issued instructions regarding the precautions that should be taken while firing on the car of Ahmad Raza Kasuri so that no body else got hurt, and he had no intention to kill Ahmad Raza Kasuri.

160. Questions regarding the application of section 111 of the Pakistan Penal Code and whether a conviction under this section could be recorded without there being a separate charge thereunder have been dealt with exhaustively in paragraphs 780 to 840 of the majority Judgment. The contentions now raised have been fully discussed, and before reaching its conclusions, the Court has taken due note of the large number of precedent cases cited by both sides in support of their respective contentions. It seems to us, therefore, that the submissions now made by the learned counsel are only an attempt to reargue the point in the hope that different conclusions might be reached in this behalf. Such an exercise clearly falls outside the scope of review proceedings.

161. It will be pertinent to state that in paragraph 812 of the majority Judgment it has been observed that the actual plan of execution was left to the choice of the concerned assailants and the law recognises such a situation as squarely falling within the ambit of conspiracy. Earlier, in paragraph 808 of the Judgment it was observed that "a person who sets in motion a plan to murder, and his co‑conspirators implement the plan and mount a murderous attack on the victim but miss him and kill a person nearby, he is responsible for the acts of his agents committed in furtherance of the conspiracy, because such a result is the probable consequence of the murderous attack. When a man conspires to murder, and in furtherance of the conspiracy an attack with automatic weapons is mounted on the person intended to be murdered, he cannot plead that he could not visualize that the probable consequence would be that a bullet may miss the target and kill another person nearby. No man can say that he did not authorise an act which he could or ought to have foreseen as the probable consequence of his conspiracy. If he did not, he might and ought to have foreseen and is liable to the same extent as if he had foreseen. The death of Kasuri's father was thus clearly a probable consequence of the murderous attack on Ahmad Raza Kauris".

162. In paragraphs 812‑A and 813 the contention that the act of firing was a reckless act was repelled. In paragraph 827, after discussing the question of the application of sections 109, 111 and 301, P. P. C., and the questions whether the provisions of sections 236 and 237, Criminal Procedure Code are attracted to the circumstances of this case, and whether there was any doubt as to the application of sections 109, 111 and 301 of the Pakistan Penal Code, the conclusion reached was that: "In any event, this was a case where it was doubtful which of several offences the facts which can be proved will constitute and hence fell within the purview of section 236, Cr. P. C. Being a case falling within the contemplation of section 236, Cr. P. C., the appellants could be convicted of the offence which was shown to have been committed although not charged with it under section 237, Cr. P. C. However, the facts have to be set out in the charge with sufficient particularity so that the accused may know what act or acts he is said to have done, so that the question that remains is one of law, namely, as to what offence the act or acts constitute."

163. This question was then answered in paragraph 834 of the Judgment as under: "Thus the accused was given sufficient notice of the facts constituting the offence. The facts were set out in the charge with sufficient particularity so that the accused could know what act or acts he was said to have done, and the only question that remained was one of law, namely, as to what offence the said act or acts constituted. It has been observed that the true test is whether the facts are such as to give the accused notice of the offence for which he is going to be convicted though he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge. Thus the conviction of the appellants under section 111, P. P. C. in the absence of a specific charge in that behalf is not open to any objection."

164. The conclusions reached in the aforementioned paragraphs fully cover all the submissions which were made at the hearing of the appeal by Mr. Yahya Bakhtiar, and which have now been repeated in review proceed ings. A word might, however, be said about his contention that approver Ghulam Hussain had issued instructions regarding the precautions to be taken while firing on the car of Ahmad Raza Kasuri so that no one else got hurt, and that even Kasuri might get away. It will be seen that implicit in these instructions was the fact that Ghulam Hussain was conscious that when fire is opened from automatic weapons, then the possibility of other persons getting hurt is very much present. This circumstance would appear to confirm the conclusion reached by the Court that the death of the deceased was a probable consequence of the attack mounted on Ahmad Raza Kasuri's car, for the fact remains that approver Ghulam Hussain, and appellants Ghulam Mustafa, Arshad Iqbal and Rana Iftikhar Ahmed selected the particular site at which the attack was launched as well as the manner in which it was carried out. As they were petitioner's agents at the spot, he cannot escape responsibility for their act, specially when the Court has held that he ought to have foreseen the probable consequence of his conspiracy which involved an attack with the automatic weapons of the Federal Security Force:

165. During the present proceedings a new point was urged by Mr. Yahya Bakhtiar that the alleged conspiracy was not necessarily to cause the murder of Ahmad Raza Kasuri by use of automatic weapons, as he could be killed by other methods. It is not only a new plea raised for the first time in review, but is also not borne out by the evidence on the record.' In any case, the execution of the plan having been left to the Federal, Security Force by the petitioner, and the persons who mounted the attack being his agents, he must be held responsible for the method actually adopted by them to execute the conspiracy and its probable consequences.

166. We may now take up the contention that there is an error in applying section 109 in addition to section 111, P. P. C., while recording convictions against the petitioner. Section 111, P. P. C. lays down that when an act is abetted and a different act is done, the abettor is liable for the act done, "in the same manner and to the same extent as if he had directly abetted it". This section is, however, subject to the proviso that the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. It may be seen that even if the act committed is a probable consequence of the abetment, this section by itself does not prescribe any punishment which is determined by reference to section 109, P. P. C. in case there be no other express provision prescribing punishment for the act abetted. This would show that in this case of murder the convic tion of the petitioner under section 302 read with sections 109 and 111 of the, Code was in order.

167. For the foregoing reasons we are of the view that the submissions made by Mr. Yahya Bakhtiar in relation to the application of section 111 of the Pakistan Penal Code, and other allied matters have no substance, and do not, in any manner, call for a modification of the majority judgment.

168. We may now take up the contention that having reaffirmed the rule laid down in the case of Faiz Ahmad v. The State (PLD1960SC8) in regard to the effect of the non‑supply to the defence of statements of prosecution witnesses recorded under section 161 of the Criminal Procedure Code during the course of investigation, the majority Judgment suffers from a patent error in not applying the rule to the facts of this case, and erroneously deciding neither to exclude the evidence of the prosecution witnesses concerned, nor to order a retrial of the petitioner on that account.

169. A reference to the Judgment of the majority shows that although Faiz Ahmad's case was considered to be a useful precedent which laid down the correct law on the subject, but it was also considered that some observations occurring therein were susceptible of different interpretations and it was necessary to formally lay down the procedure that should be followed in practice in such cases, namely that‑

"(a) copies of the statement under section 161, Cr. P. C. of the witness, which has not been supplied to the accused, should be supplied to him and the said statement considered in juxtaposition with any other previous statement of the witness which had been supplied alongwith the statements made by him in Court including his cross‑examination, to ascertain whether any prejudice has in fact been caused to the accused. If after such comparison it appears that no prejudice has been caused the irregularity in not supplying the copies of the statement in question to the accused, as required under the law, would stand cured under section 537, Cr. P. C. and no further action shall be called for. (b) If on making the comparison, referred to above, it transpires that the non‑supply of the copies has resulted in prejudice then any of the following courses may be followed, depending on the facts of each case :‑ (i) the statement of the witness at the trial can be excluded ; or (ii) the witness recalled and allowed to be cross‑examined on the basis, of the statement supplied ;` or (iii) a re‑trial ordered."

170. It was in the light of the above principles that the situation arising owing to the non‑supply of the 161 statements of the two approvers, Masood Mahmood and Ghulam Hussain as well as the 161 statement of Abdul Hayee Niazi P. W. 34 was examined. The plea, therefore, that Faiz Ahmad's ease was not applied in practice although the rule laid down therein was adopted in principle, is to overlook the fact that this Court had itself formulated a comprehensive rule to govern such situations, no doubt; by ‑drawing assistance from the rule laid down in Faiz Ahmad's case. It is in the light of this clarification that the argument of Mr. Yahya Bakhtiar that in view of the rule laid down in Faiz Ahmad's case the statement of three prosecution witnesses recorded under section 161, Cr. P. C. during the course of investigation and not supplied to the defence must either be excluded or retrial ordered, needs to be considered.

171. It is to be noted, that in view of the formulation adopted by this Court on this question the statement could be excluded or retrial ordered only if it was found that the case did not fall under Item (a) of the rule al formulated above. It was held in the judgment of the majority that in view of the exhaustive cross‑examination of the three witnesses on all aspects of the matter the non‑supply of their statements under section 161, Cr. P. C'. had not caused any prejudice to the case of the petitioner and, therefore, neither these witnesses were liable to be recalled for further cross‑examination nor was it necessary to exclude their evidence or to order retrial as the matter fell within the scope of Item (a) of the above rule.

172. Mr. Yahya Bakhtiar also argued before us that when the case came up for hearing on 21‑12‑1977 it was observed in open Court that 'the statements of these witnesses under section 161, Cr. P. C. did provide material for further cross‑examination, and the Court had even asked the Special Public Prosecutor as to when the said witnesses would be available for this purpose. It was at this point, according to Mr. Yahya Bakhtiar, that he felt that in view of the law laid down in Faiz Ahmad's case, the stage for recalling the witness for cross‑examination had passed as the petitioner had successfully demonstrated that the irresistible conclusion of prejudice had been strengthened, and that, therefore, after hearing him the Court decided not to recall the said three witnesses for further cross‑examination. The above submission shows that Mr. Yahya Bakhtiar was not himself keen for the cross‑examination of the witnesses on the assumption that their evidence was either likely to be excluded or a retrial ordered. However, no such indication was given by the Court. Furthermore, the Court also did not give any indication whether it was considering to recall for further cross examination all or any one of the three witnesses in question. It had merely observed while addressing the prosecution counsel that in case any prosecution witness was to be recalled the prosecution should be ready to do so on short notice in order to avoid delaying the hearing of the case. However, on further consideration all the Judges of the Court were unanimously of the view that it was not necessary to .recall any of the witnesses, including Ghulam Hussain P. W. in respect of whose evidence some discrepancies were pointed out (with regard to his statement made under section 161, Cr. P. C. and the statement made in Court). The majority was of this view for the reason that no useful purpose would be served by resummoning him for cross‑examination as the discrepancies pointed out had been touched upon in one form or the other in cross‑examination, while the other Judges were of the view that as no reliance could be placed on his testimony, therefore, it was not necessary to recall him. Thus a conscious decision was taken, after considering all the relevant facts, not to recall the witness for further cross‑examination. In this view of the matter the attempt of the learned counsel for the petitioner to re‑open the entire question by way of review is not permissible as this is outside the scope of the review jurisdiction.

173. So far as the other two witnesses, namely, Masood Mahmood and Abdul Hayee Niazi, are concerned, reasons have been given for not summoning them for cross‑examination. These were, inter alia, that Masood Mahmood had been cross‑examined at very great length and that the statement of Abdul Hayee Niazi even according to Mr. Yahya Bakhtiar, was a concocted one. Accordingly the matter was held to fall within the scope of item (a) of the principles enunciated in regard to this matter by this Court, and we see no reason to review either the principles enunciated or the decision taken in pursuance thereof for which reasons were duly given. In fact this entire matter has been elaborately discussed in the majority Judgment from paragraphs 283 to

289. No error patent on the face of the record has been pointed out so as to induce us to, review the findings contained in the aforesaid paragraphs.

174. We may now deal with the last submission made by Mr. Yahya Bakhtiar that, in any case, even if the conviction of the petitioner is maintained, it is a fit case where the lesser penalty should be awarded for the offence falling under section 302 of he Pakistan Penal Code read with sections 109 and 111 thereof, for the' reasons that the petitioner is guilty only of abetment and was not present at the spot at the time of the murder ; that the conspiracy was to kill Ahmad Raza Kasuri and not his father who was hit by accident ; that the conviction of the petitioner is based on the evidence of approvers ; that there has arisen a difference of opinion between the learned Judges of this Court as to the petitioner's guilt ; that with the introduction of the Islamic laws in the country with effect from the 12th R. Awwal 1399 H. (i.e. 10th of February, 1979) it would be anomalous to impose death penalty for unintentional murder specially when Shariat law do not recognise an approver, and the witnesses have to fulfil strict qualifications as to integrity and character before their testimony can be acted upon ; and that the fact that the petitioner was compelled to boycott the proceedings in the trial has also a bearing on the question of sentence.

175. We find that none of these questions was raised by the learned counsel during the bearing of the appeal although all these factors, except the difference of ‑opinion among the members of the Bench as to the guilt of the petitioner were fully present on the record. The learned Judges in the High Court had devoted several paragraphs to the question of sentence and they were made the subject of debate during the hearing of the appeal. Mr. Yahya Bakhtiar had contended that paragraphs 610 to 616 of the High Court Judgment regarding the personal beliefs of the appellant, and delivering a sermon as to the norms of conduct prescribed by Islam for a Muslim ruler, not only showed the bias of the Court against the appellant but were also completely irrelevant for the disposal of the case before the High Court. While the contention as to proof of bias was repelled, yet the second part of the contention was accepted, and the paragraphs in question were ordered to be expunged from the High Court judgment on the ground mentioned in paragraph 937 of the majority Judgment of this Court to the effect that paragraph 609 of the High Court judgment dealing with the circumstances of the crime and the responsibility of the petitioner, could logically have been followed by paragraph 617 of the Judgment, which consisted of just one line reading "the principal accused i3 thus liable to deterrent punishment". It will thus 'be seen that during the hearing of the appeal the question of sentence was very much present before the Court. It was, accordingly, the duty of the learned counsel for the petitioner to press all these points at the proper time. His explanation that at that time he was more concerned tf with obtaining an acquittal for the petitioner rather than pleading for K mitigation of the sentence imposed on him by the High Court, is not worthy of acceptance, for in a criminal case the question of sentence is as important as that of conviction ; and if nothing is urged on the point of sentence, it can be presumed that the defence has nothing to say in this behalf in case the conviction is maintained.

176. Now, as would appear from the precedent cases cited in an earlier part of this order while dealing with the question of the scope of review in a criminal case, it is well settled that if a legal sentence has been imposed after due consideration, then there is no error patent on the face of the record requiring correction in review in so far as the quantum of sentence is concerned. On this short ground alone the various submissions now made by Mr. Yahya Bakhtiar on this point are liable to be rejected.

177. Even otherwise, it is obvious that when the stage was reached for the majority of the Judges to Consider the question of sentence, it had become abundantly clear that the case against the petitioner was based on the evidence of approvers, supported by corroboratory evidence ; that the petitioner was being accused of only abetment by conspiracy, and there was no allegation that he was personally present at the spot at the time of the incident ; that the conspiracy was to kill 'Ahmad Raza Kasuri and not his father who was hit by accident ; and it was for both these reasons that the question of the application of sections 109, 111 and 301 of the Pakistan Penal Code was examined at considerable length. All these factors were undoubtedly present before the Court when the question of sentence was ultimately considered and decided in paragraph 933 of the Judgment, which Inter alia states as under :‑ "The facts summarised in the preceding paragraphs establish beyond any doubt that the appellant used the apparatus of Government, namely, the agency of the Federal Security Force, for a political vendetta. This was a diabolic misuse of the instruments of State power as the head of the administration. Instead of safeguarding the life and liberty of the citizens of Pakistan, he set about to destroy a political opponent by using the power of Federal Security Force, whose Director‑General occupied a special position under him. Ahmad Raze Kasuri was pursued relentlessly in Islamabad and Lahore, until finally his father became the victim of the conspiracy, and Ahmad Raza Kasuri miraculously escaped. The power of the Prime Minister was then used to stifle proper investigation, and later to pressurise Ahmad Raza Kasuri into rejoining the Pakistan Peoples Party. All these facts go to show that there are no extenuating circumstances in favour of the appellant, and the High Court was, accordingly, right in imposing the normal penalty sanctioned by law for the offence of murder as well as its abetment."